State of New South Wales v Barrie (preliminary) [2017] NSWSC 602

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Barrie (preliminary) [2017] NSWSC 602 Hearing dates: 2 May 2017 Decision date: 02 May 2017 Jurisdiction: Common Law Before: McCallum J Decision: Orders to be made for the appointment of psychiatrists to examine the defendant and for the defendant's interim supervision; parties to bring in short minutes reflecting these reasons Catchwords: CRIME – high risk sex offender – preliminary hearing – application for interim supervision order – where interim supervision not opposed subject to argument as to appropriate conditions of supervision – need for State to demonstrate a proper basis for imposing conditions sought having regard to the risk sought to be addressed Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW), ss 7, 9(3), 10A Cases Cited: State of New South Wales v Fisk [2013] NSWSC 364 State of New South Wales v Green [2013] NSWSC 1003 Category: Procedural and other rulings Parties: State of New South Wales (plaintiff) Anthony James Barrie (defendant) Representation: Counsel: L Fernandez (plaintiff) D O'Neil (defendant)

Solicitors: Crown Solicitor's Office (plaintiff) Legal Aid Commission of New South Wales (defendant) File Number(s): 2017/100353

Judgment 1. HER HONOUR: These are proceedings brought by the State of New South Wales under the Crimes (High Risk Offenders) Act 2006 (NSW). The defendant, Mr Anthony Barrie, is currently serving a term of imprisonment for possession of child abuse material. The State contends that Mr Barrie is a high risk sex offender within the meaning of the Act and seeks an order for his extended supervision for a period of five years after he has finished serving that sentence. 2. The Act requires the Court to conduct a preliminary hearing into any such application within 28 days after the application is filed. This judgment determines the issues raised at the preliminary hearing into the application against Mr Barrie. 3. The preliminary hearing serves a number of purposes. First, it enables the Court to dismiss any application that is without merit at an early stage. Secondly, in the case of applications that are to proceed, it enables the Court to obtain expert evidence for the purpose of the final hearing. Section 7 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 appointing two qualified psychiatrists or psychologists to examine the defendant and directing the offender to attend those examinations. In the present case, without making any admissions as to the final relief sought or as to what is proved by the supporting documentation, the defendant does not oppose the making of such an order. 4. Finally, the preliminary hearing provides an occasion for determining any application by the State for interim orders for the detention or supervision of a defendant, pending final determination of the application. In the present case, the State seeks an interim supervision order. In the case of high risk sex offenders, the power to make such orders is contained in s 10A of the Act. That section provides: 10A Interim supervision order-high risk sex offender The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court: (a) that the offender's current custody or supervision will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk sex offender extended supervision order. 1. In the present case, the defendant's custody will expire on 8 May 2017, which will plainly be before the proceedings are determined. The defendant was sentenced to a fixed term of imprisonment for two years and accordingly there is no period of parole in the structure of the sentence. It follows that, on that date, he would otherwise be released without any supervision whatsoever. 2. Before making an interim supervision order, it is necessary for the Court to be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk sex offender extended supervision order. As with the order for examination by the two psychiatrists, the defendant, without admissions, does not oppose the making of an interim supervision order. While that indication gives the Court a measure of comfort, it remains necessary for the Court to make an independent assessment of the supporting documentation so as to determine whether to be satisfied in the terms of the section. The authorities relating to the nature of that task are well understood and need not be rehearsed in this judgment. 3. Section 9(3) of the Act provides a mandatory and non-exhaustive list of matters to which the Court must have regard in determining whether or not to make an extended supervision order. The judgment to be formed at the preliminary hearing must be informed by a consideration of those matters to the extent that they are available at the preliminary stage. 4. One of the matters listed in s 9(3) is the reports received from the psychiatrists under s 7(4). Self-evidently, that material is not yet available. Otherwise, in my assessment, all of the matters listed in s 9(3) point to the conclusion that the supporting documentation in the present case would, if proved, justify the making of a high risk sex offender extended supervision order. In light of the position indicated on behalf of the defendant, it is not necessary to rehearse the relevant material in any great detail. I will briefly refer to the matters that have persuaded me to that conclusion. 5. The first consideration in s 9(3)(a) is the safety of the community. The defendant has a history of prior convictions for sex offences which plainly gives rise to a concern as to a risk of future offending of a serious nature, including the prospect of offending against young females. 6. Section 9(3)(c) requires the Court to consider the results of any earlier assessments prepared by qualified psychiatrists and registered psychologists. Mr Barrie has been examined on a number of occasions over a number of decades by a variety of experts in either psychiatry or psychology. The relevant material is summarised in careful detail in the written submissions provided on behalf of the State, particularly at pages 18 and following of Mr Fernandez's written submissions. That material reveals that Mr Barrie has had a consistent diagnosis of paedophilic disorder or paraphilic tendencies. The previous reports also reveal that there has been a mixed, if not poor, engagement with treatment and, as the criminal history reveals, a number of instances of re-offending, in some instances very shortly after release on supervision for earlier offences. Most recently, the defendant committed the offences for which he has served his most recent sentence during a period when he was receiving counselling as an aspect of his supervision under a previous sentence. 7. The next matter, listed in s 9(3)(d), is the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further relevant offence. The material before the Court includes two Risk Assessment Reports, one prepared in 2015 and one prepared in 2016. Those reports were prepared by different authors, each having relevant expertise in the assessment of static and dynamic risk factors indicating the likelihood of future offending of a sexual nature. Each author reached the conclusion that the defendant poses a high risk of committing serious sexual offences in the future, based both on the static assessment tools and a consideration of the dynamic or changing factors relating to Mr Barrie. It is perhaps enough for present purposes to record the conclusion of the 2015 report which considered that recent information regarding Mr Barrie's deviant behaviour demonstrates that Mr Barrie will demand intensive supervision in a strict multi-disciplined case management plan. The author noted that it was a concern that Mr Barrie was alleged to have had contact with the victim of his (then) index offence and to have sourced Internet access while attending the community based Sex Offender Maintenance Program. Those words were written before Mr Barrie was sentenced. The reference to those offences being mere allegations is overtaken by his having been convicted of those further offences. 8. Section 9(3)(e) directs the Court to have regard to treatment or rehabilitation programs in which the offender has had an opportunity to participate and related considerations. It is enough for present purposes to observe that the defendant's participation in rehabilitation has been extensive, but the results have been mixed. 9. Section 9(3)(f) requires the Court to have regard to the offender's compliance with any obligations to which he has been subject while on release on parole or while subject to an earlier extended supervision order. Again, the history indicates poor or mixed compliance with such obligations. One of the index offences is a breach of the Child Protection Register conditions. 10. The section requires the Court to have regard to the offender's criminal history, which can only be described as alarming. 11. The section also requires the Court to have regard to the views of the sentencing court at the time the sentence of imprisonment was imposed. The defendant was sentenced by Magistrate Hiatt on 6 July 2016. The maximum penalty for one of the offences for which the defendant was convicted, the child abuse material offence, was 10 years' imprisonment. However, as the defendant was sentenced in the Local Court, the jurisdictional maximum was imprisonment for two years. The magistrate described the material for the possession of which the defendant was charged. His Honour stated that it was material in which "actual children were used in the generation of the material". His Honour described the material as disclosing "a significant number of children of varying ages, including very small children, being subjected to serious sexual activity". His Honour regarded the material as "abhorrent and repugnant". The defendant had sought to establish that he had no knowledge of the existence of the material on the USB stick found at his premises. The Court rejected that evidence. His Honour was of the view that the appropriate sentence would have been three years' imprisonment and accordingly imposed a sentence of the jurisdictional limit of two years' imprisonment. Plainly those remarks reflect a serious instance of offending. 12. The final consideration to which the Court must have regard under s 9(3) is any other information available as to the likelihood that the offender will in future commit offences of a sexual nature. The Risk Assessment Reports to which I have already referred address that issue. 13. I do not have any doubt that the supporting material in the present application, if proved, would support the making of an extended supervision order under s 5I of the Act. 14. The only issue debated this morning was the question of the appropriate conditions for an interim order. In a succinct and helpful submission, Mr O'Neil, who appears for the defendant, noted the discussion of that issue in the judgment of Beech-Jones J in State of New South Wales v Fisk [2013] NSWSC 364 at [96] to [99]. In particular, his Honour said at [96]: 96 In determining whether it is appropriate to include a particular condition, it is necessary to bear in mind that the effect of their inclusion is to expose the offender to criminal sanctions if they are breached. Thus, a proper basis needs to be demonstrated for including the condition in the first place (see State of New South Wales v Ali [2010] NSWSC 1045 at [88] per Johnson J). 1. Mr O'Neil also referred to the decision of R A Hulme J in State of New South Wales v Green [2013] NSWSC 1003 at [36] to [38], particularly his Honour's remark that conditions imposed on extended supervision ought not to be "unjustifiably onerous or simply punitive". 2. Relying on those remarks, Mr O'Neil identified a number of conditions to the inclusion of which the defendant objects. For the most part, those conditions were, following discussion with counsel for the State, either deleted or amended. There remained only a contest as to conditions regarding the circumstances in which the defendant may receive visitors at his proposed approved accommodation, where he will reside with his parents. Following further submissions about those matters, a form of conditions acceptable to the State and the defendant was reached. I am satisfied that those conditions are appropriate. 3. The order I make is to direct the plaintiff to provide a form of order reflecting these reasons to my Associate by close of business tomorrow.