Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Russell (Preliminary) [2018] NSWSC 1396 Hearing dates: 6 September 2018 Decision date: 11 September 2018 Jurisdiction: Common Law Before: McCallum J Decision: 1. Pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006 (NSW), two qualified psychiatrists or registered psychologists or one qualified psychiatrist and one registered psychologist, as agreed between the parties, are appointed to conduct separate psychiatric or psychological examinations of the defendant (as appropriate) and to furnish reports to the Court on the results of those examinations by 26 October 2018; defendant to attend those examinations. 2. Access to the Court's file in respect of any document is hereby restricted such that access shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access. 3. Pursuant to s 18A of the Act, an order for the interim detention of the defendant until 31 October 2018. Catchwords: HIGH RISK OFFENDERS – preliminary hearing – where application made less than three months before defendant's release date – significance of delay –importance that the Court not suffer itself to become an instrument of injustice by condoning the administration of the Act in such a manner as to impose constructive detention – consideration of factors relevant to interim relief sought – where defendant plainly poses a significant risk to the safety of women if released – history of failure to comply with supervision – interim detention order warranted Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW), ss 6, 7, 9, 13B, 15, 17, 18, 18A, 18C Crimes (Sentencing Procedure) Act 1986 (NSW), s 58 Crimes Act 1900 (NSW), s 61D(1) Category: Procedural and other rulings Parties: State of New South Wales (Plaintiff) Brett Russell (Defendant) Representation: Counsel: D New (Plaintiff) D Roff (Defendant) Solicitors: NSW Crown Solicitor's Office (Plaintiff) Voros Lawyers (Defendant) File Number(s): 2018/207619 Publication restriction: No Judgment 1. HER HONOUR: Brett Russell is nearing the end of a lengthy term of imprisonment for serious sex offences. By summons filed 5 July 2018, the State of New South Wales seeks orders against him under the Crimes (High Risk Offenders) Act 2006 (NSW) including a continuing detention order for 12 months or, in the alternative, an extended supervision order of four years' duration. 2. Mr Russell was sentenced to a term of imprisonment of 9 years and 6 months for two counts of sexual intercourse without consent and one count of indecent assault. He has been eligible for parole since 3 October 2016 but has been refused by the Parole Board. His sentence expires on 3 October 2018. 3. Mr Russell also faces sentence for an offence of assault occasioning actual bodily harm committed against an inmate, to which he has pleaded guilty. He is due to be sentenced for that offence in the Local Court on 26 September 2018. However, as submitted by the State, it would appear that his release date will remain as 3 October 2018 in light of s 58(1) of the Crimes (Sentencing Procedure) Act 1986 (NSW), which provides: "(1) The Local Court may not impose a new sentence of imprisonment to be served consecutively (or partly concurrently and partly consecutively) with an existing sentence of imprisonment if the date on which the new sentence would end is more than 5 years after the date on which the existing sentence (or, if more than one, the first of them) began." 1. There are exceptions to the application of that section stated in subs (3) and (3A) but none appears to apply in this case. 2. The preliminary hearing of the application was listed before me on 30 August 2018 but was unable to proceed on that date because Mr Russell had refused to see the barrister briefed to appear for him when she attended the gaol to give him advice and take instructions. In that circumstance, she felt unable to appear for him on 30 August and was not available for some weeks thereafter. I stood the matter over to afford Mr Russell a further opportunity to obtain advice and give instructions. The preliminary hearing proceeded on 6 September 2018. On that date, Mr Roff of counsel appeared for Mr Russell and, after confirming his instructions during a short adjournment granted for that purpose, felt able to proceed. 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 15 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 a continued detention order or 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 (s 7 contains a similar provision in respect of applications for extended supervision orders. However, as the State seeks a continuing detention order in the present case, the order appointing experts was sought under s 15). 4. Finally, the preliminary hearing provides an occasion for the Court to determine 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 detention order and, in the alternative, an interim supervision order. 5. After obtaining advice from his legal representatives, Mr Russell indicated that he accepts that the threshold requirement (stated in s 5C of the Act) is met and did not oppose the making of an order appointing the two experts to examine him. He further indicated that he does not oppose an interim supervision order but does oppose an interim detention order. In the interests of expediting the final hearing, and with the consent of the parties, I made the order appointing the two experts on 6 September 2018, reserving the determination of the further interim relief sought. I should indicate that I understood the applicant's concession to extend only to the proposition that the supporting documentation would, if proved, justify the making of an extended supervision order, which would have warranted an order appointing experts under s 7(4) rather than under s 15(4). However, based on my own reading of the supporting documentation, I was satisfied in the terms of s 15(4) and accordingly made the order appointing the two experts under that section. 6. It remains to determine whether to make an interim supervision order or an interim detention order. It is relevant in that context to have regard to the timing of the present application. The Act precludes the making of an application more than 9 months before an offender's release date (see ss 6 and 13B) but the present application was made less than 3 months before that date. The Act contemplates that the preliminary hearing will ordinarily be held within 28 days of filing a summons but that is not always possible or practicable. Here, the period between the filing of the application and the preliminary hearing was 2 months, leaving a period of one month until the date on which Mr Russell will have served the whole of the sentence adjudged to be proportionate to his crimes. 7. Further, as the Court was informed at the present hearing, the mandatory requirement to obtain two expert reports to assist the Court in determining the final application is placing an increasing burden on the relatively small number of experts available to prepare such reports which, in turn, causes further unavoidable delay after the preliminary hearing. The requirement for the Court to determine applications on a final basis under those constraints places a significant burden on the business of the Court. 8. The Court would not suffer itself to become an instrument of injustice by condoning the administration of the Act in such a manner as to impose constructive detention. It is already impossible to hear the present application on a final basis before the defendant's due release date of 3 October 2018. Section 18C of the Act provides that an interim detention order may be renewed from time to time but not so as to provide for the detention of the offender for periods totalling more than 3 months. Counsel for the State in the present application was required to count backwards from that date (which falls in the Court vacation) in order to illustrate the need for an expedited final hearing. It is important in that context to emphasise that the extended date for release after an interim detention order should not be regarded as the offender's de facto release date. 9. Delay in the commencement of proceedings and the bureaucratic constraints in preparing an application for final hearing should not fall to the detriment of an offender close to the end of his or her sentence. In my view, that is a factor which is relevant in the exercise of the Court's decision whether to grant any interim relief sought by the State. Regrettably, I am compelled to the conclusion that this is not a case in which it would be appropriate to release the defendant without any supervision pending the final determination of the application (which is likely to occur at least two months after the defendant's release date). The real issue is whether Mr Russell should be released (with supervision) or detained during that interim period. 10. The powers to make interim orders are contained in ss 10A and 18A of the Act. Those sections provide: "10A Interim supervision order 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 an extended supervision order. … 18A Interim detention order The Supreme Court may make an order for the interim detention of an offender if, in proceedings on an application for a continuing detention order, it appears to the Court: (a) that the offender's current custody (if any) will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order or continuing detention order." 1. As already indicated, the defendant accepts (without admissions) that the threshold requirement for such an order is met and does not oppose the making of an interim supervision order. 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 s 10A or s 18A. As the State seeks an interim detention order, I have considered that issue under s 18A rather than s 10A. The authorities relating to the nature of that task are well understood and need not be rehearsed in this judgment. For reasons that will emerge from the discussion that follows, I am satisfied in the terms of s 18A. 2. If the matters alleged in the supporting documentation are proved, it is clear that the Court would be entitled to be satisfied to a higher degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is not kept in detention. The State relied in particular on his extensive violent and sexual criminal history, his institutionalisation, aspects of his mental state, his history of alcohol abuse and his apparent hostility towards women. Those remain dynamic risk factors which have not been addressed to date. 3. Following a recent amendment to the Act, s 17(2) provides that, in determining whether or not to make a continuing detention order or extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court. 4. Section 17(4) provides a mandatory and non-exhaustive list of further matters to which the Court must have regard in determining the application. 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. 5. Section 17(4)(h) requires the Court to consider the offender's criminal history. Mr Russell has an extensive criminal history of violent offences. He has past convictions for one serious violence offence, four serious offences, four offences of a sexual nature and fourteen violence offences (more serious in violence than common assault but short of meeting the definition of a "serious violence offence" under s 5A). The State provided a chronology of the offender's criminal history in Annexure A of the written submissions. That chronology also sets out offences committed by the offender whilst on parole, which is a relevant consideration under s 17(4)(f). The offender's extensive criminal history and history of non-compliance indicate that the need to protect the community is a significant consideration in the present case. I should note that some of the matters relied upon by the State were matters where no evidence was offered and the defendant was discharged. I have not had regard to those matters. I have also not had regard to a submission at paragraph 48(b)(ii) of the State's written submissions that on an occasion when the defendant pleaded guilty to an offence contrary to s 61D(1) of the Crimes Act 1900 (NSW) he could have been charged with a more serious offence. The facts of those offences nonetheless provide ample support for the State's submission that the defendant appears to bear hostility to women and poses a significant risk to their safety. 6. It is relevant in this context to consider what is usually termed the "index offence". The defendant was released on parole on 4 March 2008. He was arrested on 7 April 2008 for sexual offences against AH, a 19 year old girl. In sentencing the defendant (see s 17(4)(h1)), Woods AJ said: "Little in this sad history excites any realistic hope of rehabilitation. This man is thoroughly institutionalised by the prison environment and in my view a significant factor in sentencing this man should be simple prevention." 1. Section 17(4)(c) requires the Court to consider the results of any earlier assessments prepared by qualified psychiatrists and registered psychologists. A report from Mr Ardasinski categorised the defendant in the high risk category based on his static and dynamic risk factors. Factors relevant to that assessment are a diagnosis of personality disorder (manifesting in impulsive behaviour, aggression, reckless disregard for the safety of others, lack of remorse and failure to conform to social norms), psychopathic traits, relationship and intimacy deficits, institutionalisation, the history of chronic alcohol abuse and poor response to supervision. Most alarmingly, Mr Ardasinski noted a Corrective Services case note indicating that other inmates held a concern as to the defendant's predatory sexual behaviour towards young male inmates. 2. The State also relied on a series of other reports from psychologists and a psychiatrist over many years. It is not necessary to descend to the details of those reports. As submitted by the State, they express a theme of the defendant desiring change but evidently being incapable of achieving it, frequently reoffending dramatically within a short period after his release. 3. Section 17(4)(e) requires the Court to have regard to any treatment or rehabilitation programs in which the offender has had an opportunity to participate and related considerations. The documentary evidence shows that Mr Russell commenced treatment in the CUBIT program only on 7 May 2018. The State addressed the offender's frustration at commencing the program so late into his sentence despite agreeing to participate in the program in late 2015 and 2016. The evidence was that, because CUBIT is conducted in a minimum security centre, prisoners must reach a certain security classification to be eligible to have a position in the program (Exhibit AR-1, Vol 2, p406). The offender failed to achieve the necessary classification because of his own behaviour in custody. A Corrective Services case note dated 28 August 2016, (Exhibit AR-1, Vol 2, p381) states: "Over the last 3 or 4 months RUSSELL has been discussing what he needs to do to progress from an E2 classification to a B classification, he has been advised numerous times that his behaviour and involvement in incidents with other inmates will hamper his progression and he needs to fix this before he progress to a B class. Although he states that he will improve his behaviour and stay out of the incidents, he continues to attract Offences in Custody and bad reports from staff over previous months." 1. On 29 January 2017, the offender applied to have his E2 classification reduced (p389). However, on 15 May 2017, he was confined for 7 days for a fight in custody (p394). 2. Since commencing the CUBIT program in May 2018, the offender's participation in the program has been mixed. On 25 June 2018, he refused to participate and sought to withdraw from the program on the basis that he has "dramas, I have been threatin [sic] by a number of inmates in the CUBIT program" (Exhibit AR-1, Vol 2, tab 84). As at 23 July 2018, he had not signed the paperwork to confirm his withdrawal from the program (Exhibit AR-1, Vol 2, p420). He has approximately three to seven months of the program to complete. 3. During the preliminary hearing, the defendant sought to address the Court directly via the audio-visual link. He stated that he wishes to return to the community and receive treatment for his sexual offending history, saying (T12.6-31): "I am positive, I feel positive and I think positive what I will do when I eventually get released from this place. It is the first time I have ever been a C plus [classification] so for a lot of years, it is a big difference to me. Where I was at Junee, I felt closed in and it has just become a bit overwhelming down here and being close to home, so close but so far away, you know. I have not had contact with my family for nearly ten years and I would like to do that when I eventually get released from prison. But as far as doing a programme here, I am not saying it has not helped me because it is, they have given me the tools to use, that I need to use to stop me from re‑offending, whether it has anything to do with sex offence or whatever offence, or driving a vehicle without a licence. You know. I am older and a little bit wiser. I find it hard sometimes to participate in the group. I thought if there is some way for me to do something out side of prison and just like go to work sort of thing and getting some counselling outside that I need, will help me integrate back into the community a lot more, a lot more better, you know. I have not, I have not got any mental issues if that is what they are looking for. I have not, taken any Panadol in the time I have been in prison. I keep myself reasonably fit. Some days I have bad days, but most days I have good days, so I am just trying to explain to you that when I was at Junee people got to know me up there, the staff got to know me, the education staff, the people that run the wing, the bosses, the people in the industries, and I, I felt comfortable up there. I come down here and it is sort of put a spanner in the wheels sort of thing, and I am just not used to being in a small like community where I am now." 1. I accept that the defendant genuinely wishes to receive treatment for his sexual offending and is optimistic as to his capacity to engage with such treatment in a community-based program. However, on the limited material available at this stage, I do not think I can conclude that he will be able to do so or that that is a suitable option to reduce the likelihood of his re-offending over time: see 17(4)(e1). That assessment will be able to be made more reliably upon the receipt of the two expert reports; in the meantime, as already noted, I am required to give paramount weight to the safety of the community. 2. For those reasons, I am satisfied that the matters alleged in the supporting documentation would, if proved, support the making of a continuing detention order. I am further satisfied that in the circumstances of this case, an interim detention order should be made. As submitted by the State, the defendant evidently poses a significant risk of physical and sexual violence particularly towards women. His institutionalisation, prior chronic alcohol abuse and personality disorder increase his risk of reoffending if released and those dynamic risk factors presently remain largely untreated. The requirement under s 17(2) to give paramount consideration to the safety of the community compels the interim continuation of his detention. 3. The orders made on 6 September 2018 were: 1. Pursuant to s. 15(4) of the Crimes (High Risk Offenders) Act 2006: 1. Two qualified psychiatrists or registered psychologists or one qualified psychiatrist and one registered psychologist, as agreed between the parties are appointed to conduct separate psychiatric or psychological examinations of the Defendant (as appropriate), and to furnish reports to the Court on the results of those examinations by 26 October 2018; and 2. The Defendant is required to attend those examinations. 1. Access to the Court's file in respect of any document is hereby restricted such that access shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access. 1. The further order made today is: 1. (3) Pursuant to s 18A of the Act, an order for the interim detention of the defendant until 31 October 2018. ********** 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: 12 September 2018