State of New South Wales v Glen David Hill [2014] NSWSC 1803

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Glen David Hill [2014] NSWSC 1803 Hearing dates: 28 November 2014 Decision date: 28 November 2014 Jurisdiction: Common Law Before: Wilson J Decision: Interim Order made. Order directing respondent to attend upon two forensic psychiatrists for assessment made, with reports to be provided to the Court. See paragraph [48] for full details Catchwords: HIGH RISK SEX OFFENDER - application for interim supervision order - application for mandatory forensic assessment - no dispute as to making of orders - dispute as to conditions attaching to interim supervision order - no question of principle Legislation Cited: Crimes (High Risk Offenders) Act 2006 Crimes Act 1900; Crimes (Sentencing Procedure) Act 1999 Category: Principal judgment Parties: State of New South Wales (applicant) Glen David Hill (respondent) Representation: Counsel: DT Kell (applicant) P Johnson (respondent) Solicitors: IV Knight, Crown Solicitor (applicant) Legal Aid Commission (respondent) File Number(s): 2014/00310153

Judgment 1By summons filed in the Registry of this Court on 22 October 2014, the State of New South Wales ("the State") seeks a number of orders against the respondent, Glen David Hill, pursuant to the Crimes (High Risk Offenders) Act 2006 ("the Act"). The respondent has been on notice of the likelihood of such action being taken against him since June 2014. 2The respondent is a person who has been previously convicted of serious sexual assault offences against children and it is not disputed that he is a "sex offender" as defined by s.4 of the Act. 3The respondent is currently serving a sentence imposed upon him by his Honour Judge Solomon in the District Court sitting at Sydney on 22 March 2012. The overall sentence of imprisonment for 4 years and 9 months was imposed upon the respondent for a number of offences contrary to s.66C of the Crimes Act 1900 of Sexual Intercourse with a Person Aged 14 to 16, together with child pornography offences, as such offences were termed at the relevant time, contrary to s.91H of the same Act. The offences contrary to s.66C fall within Division 10 of Part 3 of the Crimes Act 1900 and carry a maximum penalty of imprisonment for 10 years. Such an offence is a "serious sexual offence" within the meaning of s.5(a)(ii) of the Crimes (High Risk Offenders) Act 2006. 4Although the respondent became eligible for release to parole on 10 December 2013, he was refused parole and has remained in custody serving the additional term of his sentence. That term expires on 10 December 2014, although the Court was advised from the bar table that the respondent was likely to be admitted to parole on 6 December 2014. 5The State's application having been filed when the respondent was still serving a custodial sentence for a "serious sexual offence", the respondent is a "supervised sex offender" for the purposes of s.5I(1) of the Act. 6Thus the threshold statutory criteria for the State's application have been met. 7As a broad summary, the State seeks an order pursuant to the Act for the respondent to be subject to an extended supervision order upon his release from custody. 8The matter came before me on 28 November 2014 for a preliminary or interim hearing. For the purposes of the interim proceedings the State sought two orders, being Orders 1 and 2 of the Summons. The orders are that, pursuant to s.7(4) of the Act, the respondent attend upon two psychiatrists for examination, such psychiatrists to be appointed by the Court to provide reports concerning the respondent; and, pursuant to s.10A of the Act, the respondent be made subject to an interim supervision order for a period of twenty-eight days, and comply with a number of conditions of the order during that period. 9Although the respondent did not oppose the s.7(4) order, and did not oppose the making of an interim supervision order, he did take issue with the necessity or appropriateness of a number of the conditions to the order that were sought by the State. The Nature of the Proceedings 10Section 7(3) of the Crimes (High Risk Offenders) Act 2006 provides for a preliminary hearing to be held within 28 days of the date upon which the application was filed, unless the Court extends that period. At such a hearing the Court has the power to direct the respondent to attend upon a named psychiatrist, psychologist, or both, for the purpose of forensic assessment (s.7(4)) and, upon certain matters being established, to make an order for the interim supervision of the respondent (s.10A). An interim supervision order can only be made if the respondent's custody or supervision will expire before the application is finally determined, and where matters alleged in the documentary evidence filed in support of the application would, if proved, justify the making of a high risk sex offender extended supervision order . 11The test to be applied when considering whether the documentary material is capable of justifying the making of an extended supervision order has been held not to be a stringent one (State of New South Wales v Lynn [2013] NSWSC 1147 per Button J at [18]) and is akin to the "prima facie case" test . It does not involve any prediction of the outcome of the final hearing. Simply put, if the Court is satisfied that the supporting documentation is capable of establishing a prima facie case for the final relief sought by the State, the jurisdictional test for making an interim order is met. The Evidence Relied Upon by the State 12In support of its application the State tendered a large quantity of documentary evidence to establish the facts and circumstances surrounding the commission of the serious sex offences that the respondent has been previously convicted of, together with material which might be broadly categorised as relevant to risk assessment. 13 No issue was taken by the respondent with the admissibility or relevance of that material. 14In brief, the evidence before the Court establishes that the respondent, now a man aged 30 years, has a number of convictions in both this State and in Queensland for sexual offences committed against young girls, and that he poses a significant risk of the commission of further such offences when living in the community. 15The Queensland convictions pre-date the New South Wales convictions and occurred when the respondent was aged 17 years. The relevant offences include a large number of counts for indecent treatment of a child under 16 years of age, offences of carnal knowledge of a child under 16 years, and attempted sodomy of a child under 18 years of age. 16A single child was the victim of these offences, being a girl aged 13 years. The 18 sexual offences of which the respondent was convicted occurred over a period of a few days in 2002. 17The respondent was imprisoned in Queensland upon conviction for these crimes. 18Although there was a prediction made by a forensic psychiatrist who examined the respondent at the time of sentence that he was unlikely to offend again in the same way, the New South Wales offences followed the respondent's release from custody. 19The New South Wales convictions reflect eight sexual crimes committed against a single 15 year old girl, and involved offences contrary to s.66C(3), s.91G and s.91H of the Crimes Act 1900. The child was lured to the respondent's home by false promises of modelling and promotional work, and sexually assaulted by him on a number of occasions in the following weeks. The respondent also filmed the child engaged in sexual activity, this resulting in the ss.91G and 91H convictions. 20The balance of the evidentiary material went to the question of the risk posed by the respondent to the community, and the necessity of his on-going supervision. 21Apart from his history of sexual offending, which of itself suggests a degree of risk of the future commission of such offences, the evidence establishes that there are particular features that elevate the risk of such recidivism. The applicant has a number of cognitive and behavioural deficits that must, on the evidence presently available, heighten the risk that he will again commit sexual crimes against children. 22At birth the respondent suffered cerebral injury which has led to intellectual impairment and a long-term behavioural disorder. He additionally suffers from Attention Deficit Hyperactivity Disorder ("ADHD") and a form of autism. It is likely that he has some level of frontal lobe damage. The respondent had a dysfunctional childhood, marred by violence and instability, and which was without any proper modelling of acceptable social values and conduct. 23The myriad of conditions from which the respondent suffers, coupled with his unfortunate younger years, has left the respondent with impaired ability to regulate his own conduct, and without insight into the wrongness of his thinking about children and sex. These deficits plainly elevate the risk of further offences by the respondent when at liberty. 24The sentences that the respondent has served, and the rehabilitative programmes to which he has been exposed during his time in custody, seem to have done little or nothing to mitigate that risk. Indeed, the respondent's level of participation in such programmes really only serves to emphasise the risk that the respondent poses to the community. 25 During his most recent incarceration the respondent undertook the Custody Based Intensive Treatment, or "CUBIT", programme but his participation was regarded as inconsistent and generally unsatisfactory. He was frequently the subject of warnings related to his conduct, such as for his possession of a large quantity of pornographic material, and for exposing himself to staff and inmates. 26The respondent was assessed as lacking in motivation to attend to the programme, and unwilling to address his problematic behaviour. His participation in the programme was eventually terminated on 29 January 2014, being regarded as unsuccessful. 27The respondent's inability to benefit from the CUBIT programme doubtless contributed to the opinion formed most recently by a forensic psychologist, who examined the respondent for the purposes of these proceedings, and concluded that the respondent presents a high risk of sexually re-offending relative to other adult male sex offenders. 28The forensic psychologist, Ms. Sutton, observed that, The problems identified include major difficulty in regulating emotions, impulsivity, tangential speech, naiveté, poor boundaries, disrespect for authority and rules, and poor insight into the way his behaviour impacts on others. 29She concluded, ultimately, that the respondent's likely recidivism rate is around 5.2 times greater than the rate which might be expected of "typical" sex offenders. 30Whilst calculations and predictions of this nature can hardly be an exact science, and must be treated with some circumspection, the sort of actuarial assessment provided by Ms. Sutton is one of the factors the Court must consider. 31Pursuant to s.9(3)(d1) of the Act, a risk management report was prepared by appropriately qualified staff of the Department of Corrective Services, the authors of which concluded that the risk posed to the community by the respondent could be adequately addressed through supervision and monitoring. A number of restrictions on the respondent's living circumstances and conduct were considered necessary. 32On the basis of that evidence, the State seeks the orders noted above. The Tests Applicable to the Orders Sought 33In determining whether orders must be made pursuant to s.7(4) of the Act the Court must consider whether the matters advanced in the documentary evidence would, if proven, ground an order for an extended supervision order. Section 5C(1) provides for the making of an extended supervision order against a "high risk sex offender". Section 5B(2) provides that a "sex offender" will be a "high risk sex offender" if the Court is satisfied to a high degree of probability that the relevant individual poses an unacceptable risk of committing a serious sex offence if unsupervised. Section 9(3) sets out a number of matters to which the Court must have regard when determining an application for an extended supervision order. 34In considering whether to make an interim supervision order pursuant to s.10A the same determination is made: whether the matters advanced in the supporting documentation would, if proven, warrant the making of an extended supervision order. The additional requirement for an interim order is that the respondent's custody or supervision will expire prior to the final disposition of the matter. 35Without admissions as to the final outcome of the State's application, the respondent concedes both that the custody to which he is currently subject will shortly expire, and that the documentary material relied upon by the State would, if proven, justify the making of an extended supervision order. 36That concession was sensibly made. Having considered the voluminous supporting documentary material, and proceeding on the basis that that material can be proved, I am satisfied that the respondent is a high risk sex offender, and that it is appropriate to make the orders sought by the State pursuant to s.7(4) and s.10A of the Act. The Matters in Dispute 37Whilst not disputing that the evidence justifies the preliminary orders sought, the respondent does contest the necessity for all of the conditions which the State asks the Court to impose upon the respondent pursuant to s.11 of the Act. 38The State sought the imposition of conditions relating to * Accommodation; * Place and travel restrictions; * Employment, Finance and Education; * Non-associations; * Access to the internet; * Access to pornographic or classified material; * Alcohol and drug use; * Search and seizure; * Personal details and appearance; * Medical intervention and treatment; and * Disclosure of information. 39The respondent took no issue with the vast majority of the conditions sought, but raised a concern as to conditions which he submitted were not justified on the evidence, and could have the effect of leaving him socially isolated and lonely, social isolation from an age appropriate peer group being a clear risk factor for the respondent. 40The issues of dispute centred on the length of the period of advance notice the respondent was required to give concerning his intended movements to those monitoring him, the necessity of restrictions upon the attendance of the respondent at public places such as parks, and the suggested prohibition upon the consumption by the respondent of alcohol. 41Advance Notice as to Proposed Activities: The State submitted that a condition requiring the respondent to provide a schedule of his movements seven days in advance to those supervising him was necessary to ensure that his activities and movements could be adequately investigated, and properly approved or otherwise. The respondent submitted that this was such an onerous requirement that, particularly having regard to the cognitive difficulties from which he suffered, it would be impossible for the respondent to comply with the condition, and he would be placed in a position where he was either socially isolated in his accommodation, or in breach of the condition. 42Having considered the submissions of the parties I determined that it was appropriate to impose the condition sought by the State, despite the heavy burden it imposed upon an individual who had formerly demonstrated a chaotic lifestyle, principally because I was persuaded that it was administratively necessary for the proper supervision of the respondent. The State submitted, and I accept, that the Corrective Services authority require the level of notice the State specified in its proposed conditions, to permit the respondent's proposed activities, and locations he intended to visit, to be properly assessed for any relevant risk. 43Attendance at Public Places: The respondent submitted that the conditions proposed by the State were such as to prevent the respondent from attending public places such as public gardens and parks and were so restrictive as to inhibit his successful reintegration to the community. The State submitted that, since families and children frequented such places, the respondent's attendance at such venues must be restricted for the safety of the community. 44After considering the submissions, I decided that, as the restriction upon attendance at public places such as parks applied only in the absence of written permission from the supervising officer, the condition represented a reasonable and necessary restriction which was directed to preventing the respondent from attending such places on an impulsive and unauthorised basis, without preventing him from utilising such public facilities in a manner approved by his supervisor. 45The Consumption of Alcohol: The final area of dispute centred on the respondent's consumption of alcohol. The State sought to prevent the respondent from consuming any alcohol at all in the period of interim supervision. The respondent submitted that there was no evidence that alcohol was a risk factor in his case, and he should not be prohibited from attending licensed venues or consuming alcohol. 46The submission advanced by the respondent was consistent with the evidence. Alcohol had had no part to play in the commission of the sexual offences the respondent had previously been convicted of, and there was no evidence that alcohol was a particular risk factor for him. Counsel for the applicant relied upon the general contention that alcohol had a disinhibiting effect and could thus heighten the risk posed by the applicant. 47The risk identified by the State is generic and not specific, and is not indicated in the applicant's case on the evidence. Licensed premises, by the very nature of such venues, ought not to be attended by children, and thus the prospect of the applicant encountering children at such places must be limited. It is not desirable to isolate the respondent from places where he can socialise with adults. Accordingly, I declined to impose upon the respondent the condition sought by the State restricting the respondent's access to alcohol and places where alcohol is consumed. The Orders 48The orders made by the Court on 28 November 2014 are thus as follows. (1)Pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): (a)the Court appoints Dr Andrew Ellis and Dr Jeremy O'Dea to conduct separate psychiatric examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by 16 January 2015; and (b)the defendant is directed to attend those examinations. (2)Pursuant to section 10A of the Act the defendant is subject to an interim supervision order from 1 December 2014 for a period of 28 days. (3)Pursuant to section 11 of the Act, the defendant is to comply with the conditions set out in the Schedule to this Order for the period referred to in paragraph 2 above. (4)List the matter for further mention, and for the purpose of the State's application to extend the interim supervision order, before the Common Law duty judge on 16 December 2014. (5)List the matter for hearing of Order 3 of the Summons filed on 22 October 2014 on 5 February 2015. (6) Direct: a)The State of New South Wales to file and serve any further evidentiary material, and any written submissions upon which it seeks to rely by close of business on 29 January 2015. (b)The defendant to file and serve any evidentiary material, and any written submissions upon which he relies by close of business on 3 February 2015. (7)Direct that access to the Court file in respect of any document shall not be granted without the leave of a Judge of the Court. lf any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to be given the opportunity to be heard. (8)Grant liberty to apply on one day's notice.