Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Michael David Jones [2018] NSWSC 241 Hearing dates: 22 February 2018 Date of orders: 22 February 2018 Decision date: 22 February 2018 Jurisdiction: Common Law Before: Hamill J Decision: 1. An order pursuant to s. 15(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): a. Appointing either Dr Kerri Eagle, Dr Richard Furst or Dr Jeremy O'Dea, each of whom are qualified psychiatrists, and Ms Chelsea Dewson, a registered psychologist, to conduct separate psychiatric and psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by 15 March 2018, and b. directing the defendant to attend those examinations. 2. The Plaintiff is to file and serve affidavits, expert reports and submissions for the final hearing by 19 March 2018. 3. The Defendant is to notify the Plaintiff if any court appointed experts or the Plaintiff's witnesses are required for cross examination at the final hearing by 21 March 2018. 4. The Defendant is to file and serve any evidence and submissions for the final hearing by 26 March 2018. 5. The matter is listed for final hearing on 28 March 2018 with an estimate of one day. 6. Liberty to relist on 1 days' notice. 7. The Defendant is to ensure that any witness or expert witness whose evidence is filed and served pursuant to paragraph 4 of these orders is made available if required by the plaintiff for cross-examination at the final hearing. 8. The Plaintiff has liberty to uplift Exhibit CB-1 and mark that affidavit to apply page numbering where absent in the original. Catchwords: CIVIL LAW – continuing detention order – preliminary hearing – amendments to legislation – nature of test at preliminary hearing – substantial body of evidence – rhubarb and apple crumble – no question of principle. Legislation Cited: Crimes (High Risk Offender) Act 2006, ss 5B, 5C, 7, 9, 10A, 15, 17 and 18A Category: Principal judgment Parties: State of New South Wales (Plaintiff) M D Jones (Defendant) Representation: Counsel: Ms D New (Plaintiff) Dr R Webb (Defendant) Solicitors: Crown Solicitors Office (Plaintiff) Bay Legal (Defendant) File Number(s): 2017/00368111 Publication restriction: Suppression order over identify of children named in evidence EX TEMPORE Judgment 1. By summons filed 5 December 2017 the State of New South Wales seeks a number of orders under of the Crimes (High Risk Offender) Act 2006 (the Act). The Act has recently been amended. Ultimately, the State seeks a continuing detention order pursuant to s 5C of the Act. In the alternative, the State will seek an extended supervision order pursuant to s 5B. 2. The defendant is currently serving a lengthy sentence of imprisonment. He was previously released to parole put his parole was revoked and his entire sentence will expire on 6 April 2018. The matter is before me today for a preliminary hearing pursuant to s 15 of the Act. A timetable was previously set by Bellew J and his Honour set a timetable including the service of evidence and culminating in a final hearing on 28 March 2018. 3. Because the final hearing will take place before the first date upon which the defendant might be released it is unnecessary at this stage for me to make or to consider the appropriateness of making either an interim supervision order on or interim detention order. Assuming the matter gets to a final hearing the Judge who hears the matter on 28 March 2018 may be invited to make an interim order of one kind or another if they feel that they are unable to reach a final decision prior to the applicant's release from his current sentence. 4. The purpose of today's hearing is to determine whether or not the matter should proceed to a final hearing at all and, if so, to make orders appointing experts and, if necessary, other orders in the nature of case management. 5. Sections 7 and 15 of the Act require a preliminary hearing to be conducted by the Supreme Court. Section 15(4) provides that if the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a final order the Court may do certain things. Section 15(5) provides that if following the preliminary hearing the Court is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or an extended supervision order, the Court must dismiss the application. A similar test applies when the Court is asked to make an interim detention order or interim supervision order (see ss 10A and 18A). 6. The nature of these preliminary determinations has been considered in a number of cases, as has the risk assessment test required on the final hearing. Because the timetable that has been set is tight and because of the relative proximity of the potential for the defendant to be released it is imperative that I give judgment today having attempted to digest the large body of material relied upon by the parties and also having considered the helpful submissions made by counsel for both sides. 7. Accordingly it is necessary that I be brief in providing my reasons. There is no dispute as I understand it that the defendant is an offender who is serving a sentence of imprisonment for a serious offence as defined and is currently in custody, that he is a detained offender, and that the application for the order has been made in accordance with the relevant statutory provisions: see s 5C(a), (b) and (c). However, it is disputed that I would be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of either an extended supervision order or a continuing detention order: ss 5C(d) and 15(4). 8. In a sense the task involves making a prediction based on the material available as to the likely outcome of the case if it reaches a final hearing. That involves considering the test that would then be applied. That is, the Supreme Court must consider, based on the material identified and stipulated in ss 9 and 17 of the Act, whether it is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept in detention or subject to a supervision order. A recent amendment to the Act means that the Court in making a continuing detention order need not address the question of whether adequate supervision will be provided by an extended supervision order. [1] 9. Again many cases have by now considered the nature of that test although there is little, if any, authority on the impact of the recent amendments that impact upon the relevant considerations. The Judge finally hearing the matter will be guided by the purposes of the legislation which are protective rather than punitive. The primary objective of the Act is to protect the community from further offences. A secondary objective is the rehabilitation of people such as the current defendant. 10. In 1991 the defendant was sentenced by Shillington DCJ in the District Court sitting at Parramatta. He pleaded guilty to 15 charges involving acts of gross indecency and what was described then as homosexual intercourse. The victims of those offences were five boys aged between 13 and 16 years of age. The facts are set out, albeit with his Honour's customary and refreshing brevity, in the remarks on sentence of Shillington DCJ. 11. The applicant was sentenced to imprisonment for a period of three years in respect of eight counts and five years in respect of six counts. The two "sets" of sentences were made concurrent with one another and there was some partial accumulation, as I follow it, in respect of the two sets of offences. In any event the defendant became eligible for parole on those sentences on 28 November 1995. He was released to parole. It was alleged that he breached the conditions of that parole by being in contact with and befriending children or at least one child. 12. In 2000 and 2001 the defendant committed a series of further offences which brought him before Shadbolt DCJ in the District Court on 10 September 2004. It is the sentence then imposed (by Shadbolt DCJ) which will expire on 6 April this year. Again the facts of those offences were set out in a little more detail by Shadbolt DCJ and, again, they involved serious sexual offending against teenage boys as well as the publication of indecent material. 13. It was unsurprising, in view of the gravity of the crimes and the defendant's previous offences, that his Honour imposed a lengthy sentence. The total sentence comprised of a non-parole period of nine years with an additional term of five years. That was the total effect of the individual sentences imposed by his Honour. It is unnecessary to set out the individual sentences imposed in relation to each of the offences. 14. The applicant was not released to parole for some significant time after the non-parole period expired. After the applicant was eventually released to parole in April of 2017 he was subject to a number of forms of supervision and other restrictions on his conduct. He was on the Child Protection Register which forbade him from having conduct with people under 18 years of age. He was also subject to parole supervision and subject to various directions and conditions as to his conduct as a result. 15. Relevantly, in May 2017 he was directed not to have access to social media accounts including Facebook. There seems to be little dispute that by that time he was "Facebook friends" with three boys aged 15 or 16 years. After the direction was given not to use Facebook, it seems fairly certain that the defendant posted a birthday message to one of the boys on Facebook. Ultimately his parole was revoked and he was charged with an offence or offences of breaching the conditions of the Child Protection Register. 16. His parole remains revoked even though the charges of breaching the Register were dismissed, the learned Magistrate not being satisfied beyond a reasonable doubt that the defendant was guilty of the offences with which he stood charged. 17. The breaches in question were, on their face, relatively minor breaches. They involved engaging in "Facebook friendships" with three teenagers under the age of 18 and possessing images of children. The defendant claims he did not know the boys' ages. The breaches also involved the breach of directions or parole conditions which required him not to use social media. The chronology of events is a little difficult to understand and the conditions of his conduct changed from time to time. It may be, as submitted by Dr Webb who appears on the defendant's behalf, that there was some confusion in the defendant's mind as to precisely what was required of him. One of the breaches which involved the possession of images of children appeared to have been based around his possession of fairly benign magazines in which images of children were depicted along with a number of recipes for dishes such as rhubarb and apple crumble. 18. There is a live and real issue as to whether the defendant was in possession of that material at the relevant time. It seems that it was material he had possessed some time earlier. However, what does appear to be clear (or at least able to be established if the evidence is accepted) is that the defendant, in spite of the conditions restricting his behaviour, used social media after being directed not to do so and that he was in some form of electronic communication with boys under the age of 18. 19. There is before the Court a body of psychological assessment which raises a concern that the defendant lacks insight into the kind of triggers that might cause him to offend again against teenagers. Conduct such as the kind alleged here was precisely the kind of conduct that may trigger such abhorrent behaviour. Since he became eligible for release on parole a number of assessments have been conducted and opinions proffered by experts as to the defendant's sexual psychology and the risk he represents in terms of repeating the pattern of sexual offending against children. 20. Those reports suggest that it would be open to the Judge hearing the final application to find that he is a person who represents a high risk of reoffending. The most recent report prepared in November 2017 describes the defendant as "a man who appears to have a sexual attraction to young boys". The report continues that "risk instruments assess him as being a high risk of sexual recidivism" and that "his internal restraints to offending appear to be minimal or non-existent". An earlier report made in June 2016 described him as having a sexual preference for pubescent and post-pubescent males. He was again assessed as being in the "high risk category for sexual reoffending". A report in 2014 also placed him in the high risk category relative to other male sexual offenders. 21. Some the reports and other case notes suggest that the defendant's interaction with rehabilitation services improved over the years he was in prison. There are reports of his participation in the CUBIT program and some of the notes are quite positive. However, other officers were sceptical as to the extent to which he was truly engaged in the various rehabilitation programs. 22. Dr Webb contended that the psychiatric and psychological reports and assessments are based on hearsay and on other people's opinions. That may be a valid criticism and may be accepted by the Judge hearing the final application. However at this stage the material, and importantly the opinions therein stated, must be taken at their highest. On its face there is a consistent body of opinion that the defendant is a person in relation to whom there is a high risk of re-offending. His alleged conduct while on parole which is set out in some detail in a statement made by Andrew Sandercock is, if it is accepted, of real concern. Some of that material appears to be indisputable. Other parts may be subject to debate. 23. The defendant's engagement with teenagers under 18 years through social media at a time when, taking the evidence at its highest, he knew or ought to have known that he was prohibited from engaging in social media communications and prohibited from being in contact with people under the age of 18 is a matter relevant to the ultimate assessment to be made by the Judge who is to hear the final application. 24. I accept the submission made on behalf of the defendant that this is not a clear-cut case. Nevertheless taking the State's material at its highest I am satisfied that the matters alleged in the supporting documentation produced by the State would, if proved, justify the making of an extended supervision order or a continuing detention order. It may be that the former is the more appropriate resolution given the relatively benign nature of the breaches alleged, the length of time that has expired since his last serious sexual offence, noting of course that he has been in custody for most of that time. However, that is not a matter with which I need concern myself today. It will be a matter for the Judge hearing the final application to determine whether any final order is made and, if so, whether it be for extended supervision or for continued detention. That Judge will be in possession of more up-to-date material including more up-to-date assessments made by qualified experts appointed under the Act. 25. In any event I am satisfied that the matters required by ss 7 and 15 and propose to confirm the timetable already set, and to make orders appointing experts and directing the offender to attend upon examination by those experts. 26. Following discussion as to the appropriate form of the orders, I made the following orders: 1. An order pursuant to s. 15(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): 1. appointing either Dr Kerri Eagle, Dr Richard Furst or Dr Jeremy O'Dea, each of whom are qualified psychiatrists, and Ms Chelsea Dewson, a registered psychologist, to conduct separate psychiatric and psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by 15 March 2018, and 2. directing the defendant to attend those examinations. 1. The Plaintiff is to file and serve affidavits, expert reports and submissions for the final hearing by 19 March 2018. 2. The Defendant is to notify the Plaintiff if any court appointed experts or the Plaintiff's witnesses are required for cross examination at the final hearing by 21 March 2018. 3. The Defendant is to file and serve any evidence and submissions for the final hearing by 26 March 2018. 2 201703781 D2018/94670 4. The matter is listed for final hearing on 28 March 2018 with an estimate of one day. 5. Liberty to relist on 1 days' notice. 6. The Defendant is to ensure that any witness or expert witness whose evidence is filed and served pursuant to paragraph 4 of these orders is made available if required by the plaintiff for cross-examination at the final hearing. 7. The Plaintiff has liberty to uplift Exhibit CB-1 and mark that affidavit to apply page numbering where absent in the original. 1. I also made orders suppressing the names of children referred to in the evidence although those names do not appear in this judgment. 2. Since delivering this judgment ex tempore I realised that I did not deal with a submission made by Dr Webb concerning the defendant consenting to a stringent Prohibition Order at the conclusion of the Local Court hearing. The relevance of that will be a matter for the Judge conducting the final hearing who will be required to take into account, among other things, the recent amendments to the legislation. It is not a matter of great, if any, moment at a preliminary hearing. 3. I also add that the State has produced in its summons the possible conditions of an extended supervision order, if its primary position (urging a continuing detention order) is not accepted. The Court expects that the state will be in a position to provide evidence of the availability of suitable accommodation, and supervision, at the final hearing. ********** Endnote 1. See the terms of the repealed s 5D(1) of the Act. 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: 02 March 2018