Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Merkel [2017] NSWSC 717 Hearing dates: 5 June 2017 Date of orders: 05 June 2017 Decision date: 05 June 2017 Jurisdiction: Common Law Before: Fullerton J Decision: (1) Pursuant to s 7(4)(a) of the Crimes (High Risk Offenders) Act 2006 ("the Act"), the Court appoints one qualified psychiatrist and one registered psychologist as agreed between the parties, to each examine the defendant and provide a report to the Court by 30 June 2017. (2) Pursuant to s 7(4)(b) of the Act, the defendant is directed to attend examinations by the Court appointed psychiatrist and psychologist named in Order 1. (3) That the plaintiff file and serve any further evidence on which it intends to rely by 5.00 pm on 4 July 2017. (4) That the plaintiff file and serve written submissions on which it intends to rely by 5.00 pm on 4 July 2017. (5) That the defendant provide notice to the plaintiff of any witnesses required to be called by the plaintiff by 5.00pm on 4 July 2017. (6) That the defendant file and serve any evidence on which he intends to rely by 5.00 pm on 7 July 2017. (7) That the defendant file and serve written submissions on which he intends to rely by 5.00 pm on 7 July 2017. (8) That the matter be listed for hearing on 10 July 2017 at 10.00am with an estimated duration of 1 day. (9) That access to the Court's file by a non-party in respect of any document shall not be granted without the prior notification by the Registrar of the Court to the parties of the non-party's application for access, and such access will not be granted without the leave of a Justice of the Court. (10) The parties have liberty to apply to relist the matter on one working days' notice. Catchwords: HIGH RISK OFFENDER - serious sex offender - preliminary hearing - application for interim supervision order and for examination by court-appointed psychiatrists Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW) Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Category: Procedural and other rulings Parties: State of NSW (Plaintiff) John Martin Markel (Defendant) Representation: Counsel: S Callan / A Rose (Plaintiff) A Hughes (Defendant) Solicitors: Crown Solicitor of NSW (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2017/153620 Judgment 1. HER HONOUR: By Summons filed on 22 May 2017 the State of New South Wales ("the State") seeks orders, inter alia, that the defendant, John Martin Merkel, be subject to a High Risk Sex Offender Extended Supervision Order ("an ESO") under s 5C and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") for a period of five years and an order directing him to comply with the conditions set out in the Schedule to the Summons for the duration of the ESO. 2. An order was also sought pursuant to s 7(4) of the Act that two qualified psychiatrists and/or registered psychologists (or any combination of such persons) conduct separate psychiatric or psychological examinations of the defendant and furnish reports to the Court of the results of those examinations. An order was also sought directing the defendant to attend those examinations. 3. The Summons, as filed, sought an interim supervision order ("an ISO") to date from 2 September 2017, the date that the defendant's current sentence expires. At the preliminary hearing listed before me today that order was not pressed as the Court was able to fix a date for the hearing of the Summons before 2 September 2017, namely on 10 July 2017. 4. In support of the orders sought at this time, the State read the affidavit of Jamie McLachlan, solicitor, dated 22 May 2017 and tendered the various documents exhibited to his affidavit. 5. At the preliminary hearing, an order that the defendant submit to the examination the subject of an order under s 7(4) of the Act was not opposed. Further, in written submissions filed by the defendant's counsel, it was conceded that the statutory pre-conditions for the making of interim orders were satisfied. 6. Those concessions included the following: (a) The defendant is a serious sex offender (having committed a serious sex offence as defined in s 5(1) of the Act); (b) The defendant is a supervised sex offender for the purposes of s 5I of the Act; (c) The defendant is in the final six months of supervision for the purposes of s 6(2) of the Act; and (d) For the purposes of s 15(4) of the Act, it is open for the Court to be satisfied that the supporting documentation would, if proved, justify the making of the ESO and, that being the case, the appointment of two experts to conduct assessments of the defendant and to furnish reports under s 7(4) of the Act. 1. The position taken by the defendant through his counsel has truncated the need for detailed consideration to be given to the question whether the statutory requirements are met for the interim orders sought by the State. It remains necessary, however, to make clear the basis upon which I am satisfied that the supporting documentation enables the relevant findings to be made for that purpose, in particular, the basis upon which I am satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing a serious sex offence if not maintained under supervision, being the threshold test in ss 5B and 5C of the Act against which the criteria in s 9(3) of the Act are to be considered. In making that judgment, it is not necessary that I make any considered assessment of the weight of the supporting documentation, or predict the outcome of the final hearing. It is sufficient that I treat the documentation as given. Accordingly, what follows does not represent any final findings on the question whether the State will succeed in an ESO being made as the final relief it seeks under the Summons. 2. The defendant is currently 33 years of age. He first came into contact with the criminal justice system for sexual offending as a juvenile, being aged 17. As a consequence of that conviction he became a registrable person under the Child Protection (Offenders Registration) Act 2000 (NSW), obliging him to report in accordance with that Act until 22 February 2011. In June 2007, he received a 3 month sentence for failing to inform his client manager of a change of address in breach of his reporting obligations. 3. In 2008, at age 24, he was sentenced to imprisonment for 9 years after pleading guilty to an assault with intent to have sexual intercourse with a person under 10 years of age contrary to s 66B of the Crimes Act 1900 (NSW) and failing to report under the Child Protection (Offenders Registration) Act. The first of the two index offences falls within Part 3 Division 10 of the Crimes Act and is punishable by 25 years imprisonment. It is that conviction which satisfies the definition of a serious sex offence under s 5(1)(a) of the Act. 4. In November 2010 the defendant pleaded guilty and was convicted in the County Court of Victoria of one count of sexual penetration of a 10-year-old girl in January 2004. He was sentenced to a 2-year suspended sentence. 5. Both sexual offences were committed in the context of the defendant being resident in the child's home. 6. In 2016 the defendant was charged with assaulting a 6-year-old girl in 2004. He is on bail for that offence. His trial for that offence is pending in the District Court. The trial is due to commence on 25 September 2017. 7. The defendant was released to parole on 30 September 2015 after having served 7 years in custody. 8. An application for an ESO may be made in respect of a serious sex offender who, at the time of the application, is in custody or under supervision for a serious sex offence or an offence of a sexual nature. The application by the State was made when the defendant (a serious sex offender as defined) was serving a sentence of imprisonment for a serious sex offence. As noted above, the defendant has since been released to parole under what were described in written submissions as standard conditions for supervision of a parolee. 9. I also note that the supporting documentation records the defendant having been refused parole in 2014, being at that time an untreated sexual offender with no post-release accommodation. In May 2015 he completed the CUBIT program and secured post-release accommodation at a community offender support program. Since his release to parole he has also been provided with support by the Criminal Justice Program, a division of the Department of Ageing, Disability and Home Care. I note that various community corrections officers in the course of their engagement with the defendant since his release have noted his failure to participate in structured group maintenance sessions conducted at Forensic Psychology Services in Surry Hills and his attempt, via various forms of social media, to make contact with women and young girls (or women with female children). This has necessitated the imposition of additional parole conditions with a view to ensuring he does not put the safety and protection of the community at risk by further offending whilst subject to conditional liberty on parole. 10. It would appear that his attitude to compliance with parole conditions has improved in recent times although, as the Risk Management Report prepared by the Community Corrections Manager in the ESO team makes clear, there are a number of risk factors to his reoffending which will need to be addressed and which will need to be the subject of close consideration in the final hearing. 11. Given the defendant's lengthy history of sexual offending, his variable response to supervision to date, and the prevailing and identifiable risks of further offending, including his current unwillingness to concede that he poses any residual risk of sexual offending against children, I am satisfied that the documentary material, if proved, would meet the statutory requirements for an ESO measured against the statutory criteria in s 9(3) of the Act – that is, if the defendant were in the community without supervision there is an unacceptable risk he will commit a further sexual offence. That finding being made, I am obliged to make an order under s 7(4) of the Act that the defendant be examined by suitably qualified experts, that he attend that examination and that an expert report be furnished to the Court. 12. I make that order, together with a range of procedural orders, in accordance with the Short Minutes of Order signed by the parties, and signed and dated by me. ********** 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: 07 June 2017