Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Stewart (No 2) [2016] NSWSC 981 Hearing dates: 16 June 2016 Decision date: 15 July 2016 Jurisdiction: Common Law Before: Button J Decision: (1) The defendant is the subject of a continuing detention order, pursuant to s 5D and s 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW), for a period of 12 months to date from 15 July 2016 and expire on 14 July 2017. (2) The Registry is to issue a warrant, pursuant to s 20(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), for the committal of the defendant to a correctional centre for the period specified in Order 1. Catchwords: CIVIL – Crimes (High Risk Offenders) Act 2006 – application for continuing detention order – whether the defendant is a high risk sex offender – application not opposed by the defendant – length of continuing detention order Legislation Cited: Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) Child Protection (Offenders Registration) Act 2004 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW), ss 5, 5B, 5C(1), 5D, 5D(1), 13B, 17, 17(1)(b), 17(4), 17(4)(a), 17(4)(b), 17(4)(c), 17(4)(d), 17(4)(d1), 17(4)(e), 17(4)(f), 17(4)(g), 17(4)(h), 17(4)(h1), 17(4)(i), 19, 20(1) Cases Cited: State of New South Wales v PS [2016] NSWSC 504 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Peter John Stewart (Defendant) Representation: Counsel: P Aitken (Plaintiff) S Hall (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid New South Wales (Defendant) File Number(s): 2016/99413 Judgment Introduction 1. Mr Peter Stewart (the defendant) was born in January 1956, and accordingly is 60 years of age. It seems that he grew up in a happy home, free from poverty, violence, or abuse by adults around him of alcohol or prohibited drugs. He completed his HSC when he was 17 years old, and embarked upon a career that featured a number of semi-skilled positions, including driving trucks. One might have thought that a bright future awaited him as he approached adulthood. 2. Extremely regrettably, and for reasons that are not clear, at an early age he developed a sexual attraction to young boys. That first revealed itself (by way of a finding of guilt not leading to a conviction) in 1973, when the defendant was 17 years old. 3. In the four decades since then, the defendant has sexually assaulted very many young boys. Indeed, I was told by counsel for the State of New South Wales (the plaintiff), without demur by counsel for the defendant, that the crimes of which the defendant has been convicted feature more than 20 young victims. 4. The offences committed by the defendant have included full penile/oral and penile/anal intercourse. They have also featured an inveigling by the defendant into positions whereby children would be available to him for sexual purposes. 5. To give but one example of that process derived from the voluminous documentary evidence placed before me, almost 40 years ago in 1978, the defendant was a squash coach at a youth club in a suburb of Sydney, and was, for a time, highly regarded and trusted. 6. To give an even more sinister and disturbing example from almost 20 years ago, in 1998 the defendant, then working as a truck driver, caused an advertisement to be placed in the classified section of a magazine for gay men seeking a young "truckie's offsider". The successful applicant was a 12-year-old boy, who thereafter was the victim of repeated predation by the defendant. That conduct of the defendant led to a number of convictions in 2000, and it is those offences that are the "index offences" for the purposes of the proceedings before me. 7. As one would expect, the defendant has spent many years of his life in gaol. Records from the New South Wales Department of Corrective Services show that he was imprisoned continuously from March 1987 until November 1991. He has also been continuously imprisoned in this State from December 1998 until today, a period approaching 18 years. His current sentence will expire completely on 21 July 2016. 8. Quite apart from that, the evidence before me shows that he has spent periods incarcerated in at least one other State of Australia for sexual offences against children. 9. As for the conduct of the defendant throughout many years of custody, he has not presented as a management problem. He is not burdened by mental disturbance (apart from his entrenched paraphilia), intellectual disability, or addictions to alcohol, prohibited drugs or gambling. Indeed, his criminal record shows that he is not disposed to any criminality other than sexually assaulting young boys. 10. For many years, the defendant refused to take part in the well-known custody based therapeutic program for sexual offenders, CUBIT. On occasions he has resisted doing so for logistical reasons (in terms of placement in various gaols that were not to his liking), and also on the basis of concerns about confidentiality arising from group therapy. As recently as February 2015, however, he changed his position, and I understand that he is currently enrolled in the program, and proceeding quite well. 11. As against that, the defendant has maintained a frank and firm position that, whatever the views of psychiatrists or other medical professionals, he would not consent to take anti-libidinal medication if released to live in the community. 12. Recently, Queensland police have enquired as to when it might be that the defendant will be released from prison in New South Wales. That is because they wish to extradite him to face pending charges of child sexual assault in Queensland. 13. To complete this thumbnail sketch of the background established by the evidence placed before me, in 2015 the defendant was charged with yet further sexual offences he is alleged to have committed against children many years ago. He is bail refused on those charges, and the indication is that they will be committed to the District Court of New South Wales at Newcastle in the near future. The position of the parties 1. It is in those circumstances that, by way of a summons filed on 1 April 2016, the plaintiff sought preliminary orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) from N Adams J, including the appointment of two psychiatrists to examine the defendant and provide their findings to this Court: see State of New South Wales v PS [2016] NSWSC 504 at [4]; and order 1 at [77]. Dr Ellis and Dr O'Dea duly provided those reports, and they were tendered in evidence before me. 2. At the final hearing before me on 16 June 2016, an amended summons of the plaintiff was filed in court by consent; it merely clarified the statutory bases of the various orders sought. 3. The primary position of counsel for the plaintiff was that I would make order 4 in the amended summons, in that I would impose a continuing detention order (CDO) for a period of 12 months upon the defendant. Order 5, a mechanistic order with regard to the preparation of a warrant to that effect, was also pressed. 4. Order 8 was pressed in the alternative, seeking to have imposed upon the defendant an extended supervision order (ESO) of 5 years' duration. It was noteworthy that, for reasons that I shall explain below, the plaintiff did not seek to have me impose any ESO, subsequent to the CDO, if I were content to make the primary order. 5. Remarkably – perhaps uniquely – counsel for the defendant explained that the position of her client was as follows. Not only was he content for a CDO to be imposed upon himself, but also his position was that it should be longer than the period for which the plaintiff contended. His position was that the CDO should be for 18 months, if not 2 years. I shall explain the reasons given for that extraordinary position, and my assessment of them, a little later in this judgment. 6. The parties were agreed that the defendant has undoubtedly been convicted of a serious sex offence as defined in s 5 of the Act. As well as that, the defendant is self-evidently in custody serving a sentence, and accordingly the precondition for the making of an order contained in s 13B of the Act has been made out. 7. Underpinning the consent of counsel for the defendant to the making of a CDO was, of course, a concession that the central test contained in s 5B of the Act has been established as well. That section is as follows: 5B High risk sex offender (1) An offender can be made the subject of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order as provided for by this Act if and only if the offender is a high risk sex offender. (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. (3) The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence. 1. It was further conceded, for the purposes of s 5D(1), that I would be satisfied that an ESO would not provide "adequate supervision" of the defendant, and that only a CDO would be appropriate, pursuant to s 17(1)(b) of the Act. 2. It was also expressly conceded by counsel for the defendant that, although there is a discretion reposed in me to decline to make a CDO or an ESO, even if satisfied that the test in s 5B of the Act had been made out, nevertheless there is no occasion for me to exercise that discretion to stay my hand. 3. As I have said, all of those matters were expressly conceded by counsel for the defendant. But the parties were agreed, of course, that it is a matter for my own independent judgment as to whether or not all of those preconditions for the making of a CDO – and most importantly, the central test – had been established on the evidence. Review of recently received evidence 1. A number of recent reports were placed before me. They included the report of 18 May 2016 of Dr O'Dea. In a nutshell, that eminent specialist in sexual deviance expressed the following views. 2. First, he did not diagnose the defendant as suffering from a major psychiatric illness. But he did note that the defendant would satisfy the diagnostic classification of "Pedophilia, Sexually Attracted to Males, Not Limited to Incest", and that it would be reasonable to assume that the defendant had a "strong, specific and lifelong sexual orientation of homosexual paedophilia [that] is the primary motivating factor in his history of sex offending". 3. Secondly, he identified a "significant risk" of the defendant committing a further serious sex offence. That was based on the history of repeated sex offending by the defendant against male children, and his underlying sexual attraction to them. 4. Thirdly, he noted that the defendant denied at least some of the previous sex offences of which he had been convicted, and claimed that he had not had significant homosexual paedophilic urges or fantasies for years. But Dr O'Dea stated that such urges are usually persistent, and carry with them significant long term risks that are "unlikely to be attenuated without specific and ongoing psychiatric treatment". 5. Fourthly, he reported that psychological sex offender treatment programs alone, either in custody or in the community, are unlikely to have a significant impact on the reduction of risk of the defendant re-offending in the long term. 6. Fifthly, he recommended the use of anti-libidinal medication to assist in the treatment of the defendant, and to manage and minimise his risk of engaging in future sexual offending in the long term. Because of the predominant homosexual paedophilic orientation of the defendant, he stated that the focus of such medication should be on the reduction of the deviant sexual drive of the defendant, rather than (for obvious reasons) focussing on the ability of the defendant to engage in sexual relationships. Dr O'Dea firmly stated that anti-libidinal medication would be required in order to manage adequately and appropriately the risk of the defendant engaging in further sexual offending in the long term. 7. Sixthly, he found that the risk of the defendant engaging in further sexual offending could not be managed in the community at this stage without successful implementation of a psychiatric treatment and risk management program, along with the successful prescription of anti-libidinal medication. 8. Seventhly, he found that further time in custody at the present time is unlikely to reduce the risk profile of the defendant on his subsequent release from custody. 9. Eighthly, he determined that in the long term there would be a "significantly high degree of probability" that the defendant would pose a "significant risk" of committing a further serious sex offence as defined in the Act, if the recommended treatments were not successfully implemented. 10. Ninthly, he recommended that an appropriate risk management program should be implemented over the long term, that it should be of at least 5 years' duration, and that it should be reviewed at least every 12 months. 11. In short, Dr O'Dea was very pessimistic about the risk that the defendant would present to members of the community, even if subject to a stringent ESO, unless he were receiving anti-libidinal medication in combination with psychotherapy. 12. To similar but not identical effect was the report of Dr Ellis, eminent forensic psychiatrist, of 11 May 2016. The report of Dr Ellis may be summarised as follows. 13. First, he stated that the diagnosis of primary concern is paedophilic disorder, and the pattern of offences of the defendant is consistent with fantasies, urges and behaviours arising from that disorder, and which have been persistent over decades. 14. Secondly, he noted a potential substance use disorder related to the use of amphetamines by the defendant over a lengthy period of time, with a developing tolerance and withdrawal symptoms. 15. He noted that there was no evidence of a cognitive disorder or intellectual disability, and insufficient evidence to conclude that the defendant had an anti-social personality disorder. 16. Thirdly, he determined that in the absence of treatment or supervision the defendant would fall into a "group of persons with a risk for serious sexual offending… that is statistically high in frequency, of a type with serious consequence, and greater than a theoretical average offender". On an optimistic note, Dr Ellis did think that that risk could likely be reduced through specific treatment and supervision. 17. Fourthly, he expressed the view that the evidence for psychological treatment in the community is more promising than in custody, in all likelihood as a result of psychological gains being able to be tested in a real setting, and a reduction in exposure to criminal peers. He explained that the significant monitoring that could be put in place by way of an ESO would mean that the theoretical benefits of further incarceration for psychological treatment of the defendant would be outweighed by greater gains in risk reduction in a structured setting in the community. 18. Fifthly, Dr Ellis observed that the defendant preferred not to take anti-libidinal medication, whilst noting the likely further reduction in risk if that medication were used as part of his treatment. 19. Sixthly, he advised that a period of supervision in the community of five years would be reasonable, in order to improve the functioning of the defendant in the community and to refine the appraisal of risk. 20. Seventhly, he noted that the paraphilia of the defendant is severe, and that it is a chronic, relapsing condition that is resistant to treatment and rehabilitative efforts. 21. Eighthly, he suggested that it is most likely that a period of 24 months will be required before the defendant can achieve stable accommodation, a stable mental state, and regular, meaningful activity as part of an ESO. He recommended a further 36 months of regular treatment in a psychological program, coupled with anti-libidinal medication, following that initial 24 month period. 22. In short, although Dr Ellis leant towards treatment in the community as opposed to treatment in custody as being more effective, he was similarly pessimistic about the risk of the defendant re-offending, especially if his libido were not decreased medically. 23. I was also provided with a risk management report about the ways in which the defendant could be managed, if he were released pursuant to a stringent ESO. But the point was made by both parties that, in light of the fact that the defendant is bail refused with regard to pending charges in New South Wales, and in light of the fact that it is very probable that he will be extradited to Queensland immediately upon his release from a New South Wales prison, little has been done as against the virtually hypothetical possibility that he will be living in the community when his sentence comes to an end on 21 July 2016. 24. To give but one example, no accommodation has been arranged in New South Wales, whether supported or otherwise, and the evidence is that the defendant has no connections whatsoever with this State. The extent of the planning of the defendant about how he would live if he were released is that he would travel to Queensland and recommence work as a truck driver. Submissions of the plaintiff 1. The submissions of counsel for the plaintiff may be summarised as being as follows. 2. There is no question but that the defendant has a chronic, entrenched, sexual attraction to young boys. Over a period of more than four decades, he has been prepared to act upon that attraction, thereby no doubt inflicting grave damage upon his victims. The offending of the defendant has not been opportunistic or impetuous; on many occasions, quite the contrary. There is a real flavour of recalcitrance and grim determination in the criminal conduct of the defendant. Despite his recent readiness to accept therapy in custody, that change of heart is a relatively recent one, and one should be very guarded about it. Finally, the defendant refuses to consent to the medical treatment that Dr Ellis regards as highly desirable and Dr O'Dea regards as essential to effective risk reduction. 3. As things stand, and taking into account the entirety of the life history of the defendant, there is no question but that the test contained in s 5B of the Act is established. 4. As well as that, there is no question but that, as things stand, an ESO would be inadequate; indeed, an ESO would be thoroughly impractical. 5. Finally, in the compelling circumstances of this case, there can be no question of me exercising a discretion not to make any order at all, or not to make a CDO. 6. Counsel for the plaintiff explained his decision not to press for an ESO, subsequent to any CDO, as follows. 7. First, as things stand, one would not be satisfied that the defendant should be released to conditional liberty pursuant to an ESO in a little over 12 months from now. 8. Secondly, in any event things are currently in a state of flux. The resolution of the charges recently preferred in New South Wales could take quite some time, and it is quite conceivable that the defendant will be the subject of a further cumulative sentence. 9. As well as that, it is quite possible that the defendant will be extradited to Queensland, and incarcerated there, either bail refused or pursuant to a sentence of imprisonment. 10. In the circumstances, it was submitted that it would be precipitous for me to try to predict what the situation may be 12 months from now, let alone 6 years hence. 11. Finally, in support of the general submission in support of a CDO of 12 months' duration, it was said that, pursuant to s 19 of the Act, it would be open to the plaintiff to apply to extend the CDO if subsequent events made that appropriate. Submissions of the defendant 1. As I have said, counsel for the defendant did not seek to resist the imposition of a CDO as sought by the plaintiff. But she submitted that it should be more than 12 months, for the following reasons. 2. First, she submitted that the defendant is committed to his treatment program. She noted that his treatment will extend beyond CUBIT to a subsequent maintenance program. At the present time, the classification of the defendant is not low enough for him to participate in that maintenance program. I was advised that the defendant has been seeking a lower classification, and was expecting to speak to the Serious Offender Review Council shortly after the hearing before me. She submitted that the defendant did not believe that 12 months would be long enough for him to complete both programs, and that the length of the CDO should be extended to allow him to finish the treatment program in its entirety in custody. 3. Secondly, she submitted that the defendant was realistic about there being a high likelihood of him remaining in custody as a result of the outstanding Newcastle matters, and would prefer some settlement and stability with regard to the medium term future. 4. Thirdly, if a CDO of only 12 months' duration is imposed, it will only be a matter of months before an application for a further order of some kind pursuant to the Act is commenced by the plaintiff. That will occasion inconvenience to the defendant, and disruption to his rehabilitation. Determination 1. Turning to my determination of the central question, it is appropriate for me to refer briefly to the factors contained in s 17(4) of the Act. 2. In my opinion, the safety of the community would be seriously endangered if the defendant were released into that community without fetter: s 17(4)(a) of the Act. 3. It appears that the defendant participated in the assessments undertaken by Dr O'Dea and Dr Ellis reasonably co-operatively. But each of those reports strongly suggests that the defendant constitutes a grave risk of committing a serious sexual offence against a young boy if released: s 17(4)(b) of the Act. 4. As one would expect, over the years the defendant has been assessed by countless psychiatrists, psychologists and medical practitioners. Some of them were optimistic at early stages of the offending of the defendant. Recently, they have expressed a realistic caution, if not blunt pessimism: s 17(4)(c) of the Act. 5. Statistical assessment of the risk of persons similar to the defendant committing a further serious sexual offence is adverse, entirely as one would expect, as a matter of simple common sense: s 17(4)(d) of the Act. 6. Reports about how the defendant could be managed in the community speak of the many ways in which his liberty could be circumscribed. But in light of the practical reality of no arrangements having been made for his conditional release, those methods are virtually hypothetical: s 17(4)(d1) of the Act. 7. As I have said, the defendant commenced to engage in CUBIT in 2015. It seems that he is making good progress. But that must be seen in the context of him being a person who has been incarcerated for such offences since 1998, and who first commenced to commit sexual offences against children in 1978, almost 40 years ago: s 17(4)(e) of the Act. 8. The compliance of the offender with conditional liberty in the past by way of parole orders has been very poor, chiefly because of repeated reoffending whilst on parole: s 17(4)(f) of the Act. 9. Unless I am mistaken, the defendant has never been subject to the Child Protection (Offenders Registration) Act 2004 (NSW) or the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW), for the simple reason that he has been continuously incarcerated since 1998: s 17(4)(g) of the Act. 10. The criminal history of the defendant is extremely adverse to his release: s 17(4)(h) of the Act. 11. The index offences were committed in 1998, and sentence was imposed in 2000 by Judge Ducker. Amongst other things, that extremely experienced criminal judge said at p 6 of the remarks on sentence that "I have no doubt that this man will continue to represent grave danger to young boys wherever he may be… He is an intractable, died-in-the-wool [sic] paedophile, quite content to use and abuse young boys for his own sexual gratification heedless of the damage that he does to their young lives": s 17(4)(h1) of the Act. 12. Separately, other experienced judges, such as Judge Freeman and Judge Donovan QC, have spoken in blunt terms of the danger that, in their opinions, the defendant constituted to the community: s 17(4)(i) of the Act. 13. In summary, the factors that the statute commands that I must take into account argue powerfully in favour of an order being imposed. 14. Speaking more generally, I have sought in this judgment as a whole to set out the reasons why I consider that the circumstances of this case compellingly call for restriction of the liberty of the defendant, putting entirely to one side the concession of his counsel (who is experienced in the conduct of such matters) that that is the case. 15. The thumbnail sketch of the life of the defendant that I have provided earlier in this judgment demonstrates of itself why one would inevitably be satisfied that the central test contained in s 5B of the Act has been made out. The deplorable conduct of the defendant over the last 40 years leads one to the overwhelming inference that, if unsupervised, he would be very likely to sexually assault young boys. There is nothing to suggest that the crimes that have occurred on a multitude of occasions in the past would not occur yet again in the future. And that conclusion is fortified by the position adopted by the defendant with regard to medication. 16. I am soundly satisfied that the central test is made out on the evidence placed before me. And I should say that, even if I had been deprived of the reports of Dr O'Dea and Dr Ellis to that effect, as a layperson sitting as the tribunal of fact exercising human experience and common sense, I am confident that I would have come to the identical view. 17. In short, in this case, I regret to say that there is a very real concern about protecting young boys from the sexual offending of a committed, recidivist, paedophile, who has only recently begun to accept treatment. 18. In the compelling circumstances of this case, there is no question of me exercising a discretion not to impose some form of supervision: s 5C(1) of the Act. 19. And in light of the absence of any arrangements having been put in place for the conditional liberty of the defendant (for obvious reasons, I make not the slightest criticism of any person or party in that regard), I am of the view that an ESO would be thoroughly inadequate: s 5D(1) of the Act. 20. For the same compelling reasons that lead me to the view that the central test is made out and that no discretion should be exercised to decline to impose an ESO, I am of the view that no discretion should be exercised to decline to impose a CDO: s 5D(1) of the Act. 21. As for its length, despite the explanations proffered as to why the defendant seeks to have a CDO longer than that for which the plaintiff contends, I think that, speaking generally, I should be slow indeed to impose a period of incarceration upon a citizen that is longer than that sought by the moving party empowered by statute. 22. As well as that, it is possible that the position of the defendant is motivated by a sincere desire for rehabilitation. But I think that there is also a real possibility that his position is, in truth, nothing more than another attempt at manipulation. In particular, I suspect that it could be that the defendant seeks to obtain some advantage with regard to his conditions of custody – perhaps by remaining in New South Wales as opposed to Queensland, or by not becoming a remand prisoner – by the imposition of a CDO greater than 12 months in length. 23. In the circumstances, and despite any inconvenience occasioned to the plaintiff, the defendant, and indeed this Court, I am not prepared to impose a CDO of more than 12 months, in accordance with the submissions of the plaintiff. 24. Finally, quite apart from the joint position of the parties, I have come to the view that no ESO subsequent to that CDO is appropriate. That is not only because the position as to how things may unfold, both within prison and within the criminal justice system, over the next 12 months is unclear. It is also because, on the evidence placed before me, I consider that even the most rigorous ESO would not sufficiently protect the community from the crimes against young boys that I consider the defendant would almost inevitably commit. Orders 1. I make the following orders: 1. The defendant is the subject of a continuing detention order, pursuant to s 5D and s 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW), for a period of 12 months to date from 15 July 2016 and expire on 14 July 2017. 2. The Registry is to issue a warrant, pursuant to s 20(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), for the committal of the defendant to a correctional centre for the period specified in Order 1. ********** 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 July 2016