State of New South Wales v DK [2017] NSWSC 1848

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v DK [2017] NSWSC 1848 Hearing dates: 2 November 2017 Date of orders: 02 November 2017 Decision date: 02 November 2017 Jurisdiction: Common Law Before: Lonergan J Decision: See para [15] Catchwords: HIGH RISK OFFENDER – preliminary hearing – application for interim detention order – no opposition to orders sought Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) ss 3, 5B, 5D, 15, 18A, 20 Mental Health Act 2007 (NSW) Category: Procedural and other rulings Parties: The State of New South Wales (Plaintiff) DK (Defendant) Representation: Counsel: B Anniwell (Plaintiff) P Coady (Defendant)

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2017/237923 Publication restriction: Pursuant to an order of this Court, the name of the Defendant is not to be published.

EX TEMPORE Judgment 1. The applicant, the State of New South Wales, filed a summons on 4 August 2017, seeking various orders pursuant to the Crimes (High Risk Offenders) Act 2006 ("the Act"), including interim detention orders. The orders sought relate to a young man who is currently held in the Acute Crisis Management Unit at the Long Bay Correctional Complex. As noted in the submissions by counsel for the defendant, this is not part of the Long Bay Hospital and is not designed for mentally ill patients. 2. There is a question as to whether the respondent is currently capable of giving adequate instructions, but it is unnecessary to resolve that issue for the purposes of the orders that I have been asked to make today. 3. The Crown seeks orders for the appointment of two qualified psychiatrists to conduct separate psychiatric examinations of the respondent and to prepare reports for the Court and, also, a direction that the respondent attends those examinations. 4. The Crown also seeks orders in the nature of interim relief pursuant to s 18A of the Act that the respondent be subject to an interim detention order, commencing 21 November 2017 for a period of 28 days, together with an order pursuant to s 20(1) of the Act, that the Court issue a warrant for the committal of the defendant to a correctional centre for that corresponding period. 5. Counsel for the defendant, in his short, but pertinent written submissions, did not point to any reason why the court ought not make the orders, nor was anything raised in oral submissions today as to why I ought not make those orders. 6. It is necessary for me to assess the facts and the evidence before me in the affidavit material to determine whether I should exercise my discretion to make those orders. I note in that respect that in the written and the oral submissions made by counsel for the defendant, it is conceded that the respondent does fall within the definition of a high risk sex offender, as described in s 5B(2) of the Act. It is also conceded that adequate supervision will not be provided by an extended supervision order, as set out in s 5D(1)of the Act. 7. I have carefully read the material appended to the affidavits relied upon by the plaintiff and I am satisfied that orders 1 to 3 of the summons ought to be made. 8. The material appended to those affidavits shows that the respondent has been assessed by many psychologists and psychiatrists between 2005 and now. There are significant concerns regarding self-harm but more significantly given s 3(1) of the Act and its purpose, the respondent has been assessed in October 2015 by a psychologist, Miss Kennedy-Schultz, as having a high risk of sexual re-offending. 9. The respondent was also assessed by a senior is psychologist Dr Parker in the Serious Offenders Assessment Unit of Corrective Services, New South Wales, in May 2017. Doctor Parker concluded that the respondent is at high risk of committing further sexual offences, pointing out that the childhood abuse suffered by the respondent and his difficulty in terms of intellectual and coping mechanisms affect this probability. These potential behaviours are associated with self-harming behaviours and suicidal ideation. 10. The respondent was released on parole in 2016 and, in the short period he was released, he made a number of suicide attempts and articulated suicide threats. He needed to be admitted to hospital for treatment. Parole was revoked and the respondent was returned to custody. 11. I note the submissions made by counsel for the respondent that the respondent strongly wishes to have treatment in a civilian hospital, or, alternatively, to be released to live in the community with his mother with an associated community treatment order. 12. I also note the submissions by counsel for the respondent that it may be that the respondent is best dealt with under the provisions of the Mental Health Act 2007 (NSW) as opposed to the Crimes (High Risk Offenders) Act when this matter is finally determined. 13. It has also been very properly raised by counsel for the respondent (and agreed with by the counsel for the State), that the respondent, when he is assessed by the two nominated psychiatrists, should be carefully assessed in light of his background and history, with a view to considering appropriate treatment approaches and appropriate accommodation options and that these considerations should take into account his current illness and underlying disorders. 14. The parties and their legal representatives should give specific attention to these considerations in their future preparation of the further stages of this application. I understand from oral submissions made today that this has been taking place and will continue to be discussed between the parties with instruction to be taken addressing directly those issues. 15. Accordingly, I make the following orders: 1. Pursuant to section 18A of the Act, the defendant be subject to an interim detention order from 21 November 2017 for a period of 28 days. 2. An order pursuant to section 20(1) of the Act that the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the interim order referred to in paragraph 1 above. 3. By consent, pursuant to section 15(4) of the Act - 1. that Dr Jeremy O'Dea and Dr Adam Martin be appointed to conduct separate psychiatric examinations of the defendant and to furnish reports on the results of those examinations to the Supreme Court of New South Wales by 18 December 2017. 2. the defendant is directed to attend an appointment with Dr Jeremy O'Dea on a date to be advised; and 3. the defendant is directed to attend an appointment with Dr Adam Martin on a date to be advised. 1. The matter is listed for directions on Friday, 15 December 2017 at 9am before me. 2. The matter is to be listed for further directions on Friday, 12 January 2018, at 9am before the Duty Judge. 3. The final hearing is listed for 30 January 2018 with a one day estimate. 4. For the purposes of the current proceedings, the persons identified in column 1 of Schedule A to the summons filed on 4 August 2017 be referred to only by the corresponding pseudonyms identified in column 2 of Schedule A to the summons, including for the purposes of publication of any report of this proceeding. 5. In respect of the current proceedings, no access is to be given to the Court file in the matter to any third party and if there is any necessity for access for any purpose other than the proceedings, whether by a third party, or by a party to the proceedings, then access is to be only by order of her Honour Justice Lonergan, or if she is absent on leave, another judge of the Supreme Court. 6. Liberty to apply to list the matter on one day's notice.