State of New South Wales v Russell [2018] NSWSC 1880

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Russell [2018] NSWSC 1880 Hearing dates: 23 November 2018 Decision date: 07 December 2018 Jurisdiction: Common Law Before: Button J Decision: (1) Pursuant to ss 5C and 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is subject to a continuing detention order for a period of twelve months from 12 December 2018 and expiring on 11 December 2019. (2) The Court is to issue a warrant for the committal of the defendant to a correctional centre for the period specified in order 1. Catchwords: HIGH RISK OFFENDER – serious sex offender – application for continuing detention order pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – ancillary order sought for extended supervision order – assessment of risk – community safety paramount concern – continuing detention order imposed Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW), ss 5C, 17 Cases Cited: State of New South Wales v Russell (Preliminary) [2018] NSWSC 1396 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Brett Thomas Russell (Defendant) Representation: Counsel: D New (Plaintiff) S Orman-Hales (Defendant)

Solicitors: Crown Solicitor's Office (Plaintiff) Voros Lawyers (Defendant) File Number(s): 2018/207619 Publication restriction: Nil

Judgment

Background 1. Mr Brett Thomas Russell (the defendant) was born in November 1962, and accordingly is 56 years of age. An Aboriginal man, he grew up in La Perouse in the south-eastern suburbs of Sydney in difficult and deprived circumstances. Among the most adverse of those were that both of his parents were alcoholics, and that he was subject to physical abuse as a child. 2. The most noteworthy aspect of his life since then is that he was first detained pursuant to orders of the Children's Court in September 1974 (before his twelfth birthday), and was first imprisoned in May 1981, before he had turned 20. Since that time, as a result of committing many offences of sexual violence and physical violence, he has spent a large proportion of his life in prison, and is institutionalised. 3. I shall expand on those sad statements by proceeding to summarise his interactions with the criminal justice system. In doing so, I shall not refer to offences of dishonesty or to do with driving, because I regard them as virtually irrelevant to the proceedings before me. I shall also not recount allegations that were not proceeded with by the prosecuting authorities, or that led to verdicts of not guilty, either from a judicial officer or a jury. That is because, although I do not regard such matters as entirely irrelevant to proceedings such as these, I give them minimal weight. 4. Forty years ago, the defendant was placed on probation by the Children's Court in October 1978 for assault occasioning actual bodily harm. 5. In 1982, he was fined for, amongst other things, common assault, and discharging a firearm in a public place. 6. In December 1983, he was sentenced by the District Court to a head sentence of penal servitude for six years with a non-parole period of two years for an offence of robbery. 7. In 1985, in the Local Court at Goulburn, he was sentenced to two months' hard labour for an offence of common assault. Subsequently, he received a short cumulative sentence for an offence of escape. 8. In May 1990, the defendant was sentenced to imprisonment for twelve months for counts of assault occasioning actual bodily harm and common assault, and imprisonment for two years for one count of malicious wounding. 9. In summary, the defendant had, without provocation, punched a 17-year-old girl in the face a number of times, dragged her by her hair, threw her to the ground and took her handbag. He threatened to kill the victim if she told anyone about what he had done. 10. A few weeks after that incident, the defendant was seen to strike his then-girlfriend, stab a man who intervened, and assault another two men who also intervened. 11. In June 1990, he was sentenced by Judge Madgwick QC in the District Court for a number of offences, including maliciously inflicting grievous bodily harm and sexual intercourse without consent. He received a total head sentence of imprisonment for four years, with a total non-parole period of two years. 12. In a nutshell, the grievous bodily harm was inflicted upon a male victim by the defendant when the victim refused to let the defendant drive, on the ground that he was obviously drunk. The defendant elbowed the victim to the face, and kicked the victim a number of times to the head. After witnessing this assault, the female victim called out to the defendant to stop, the defendant reacted angrily, and punched the victim to the back of her head. He then took her to a toilet block, where he raped her several times. 13. In his remarks on sentence, Judge Madgwick emphasised: the defendant's pleas of guilty; his "severe disturbances in his childhood"; his prior criminal record; his abuse of alcohol and illicit drugs; his motivation towards rehabilitation; and the finding that "the matter cannot overall be treated as one at the top of the range of seriousness". 14. In November 1990, the defendant, whilst in custody, assaulted another inmate by punching and kicking the victim's face and upper body. The victim lost consciousness as a result. The defendant was sentenced to imprisonment for 16 months for two counts of assault occasioning actual bodily harm, and imprisonment for 3 months for a further count of assault occasioning actual bodily harm. 15. In 1996, the defendant was sentenced to imprisonment for four months after he assaulted an inmate in custody. The defendant had repeatedly punched the victim to the face. 16. In December 2001, he was placed on a suspended sentence by the Local Court for three counts of aggravated indecent assault. The victim was 13 years old when the defendant touched her breasts, put his hand on her vagina, and kissed her mouth. 17. In March 2003, he was sentenced to imprisonment for four months for two counts of assault occasioning actual bodily harm. In a nutshell, the defendant violently assaulted his female and male roommates. He punched the male roommate to the jaw and back, and left the female roommate unconscious with injuries to her head. 18. In June 2004, he was sentenced to a head sentence of imprisonment for 18 months with a non-parole period of nine months for assault occasioning actual bodily harm. The defendant had assaulted his then-girlfriend, with the victim suffering a swollen eye, bruising to her mouth, and soreness to her ribs and abdomen. He also threatened to kill her. 19. In March 2008, the defendant, whilst on parole, punched his then-girlfriend a number of times, and said to her "I'll kill you, you fucking cunt". In April 2015 in the District Court, following a plea of guilty in late 2014 (I infer that for some reason the proceedings were in abeyance for an extended period), Judge Frearson SC sentenced the defendant for two counts of assault occasioning actual bodily harm and one count of assault to imprisonment for 18 months (which was completely concurrent with the total sentence for the "index offences", described below). 20. In July 2009, the defendant was sentenced by Judge Woods QC for two counts of sexual intercourse without consent and two counts of indecent assault, after his conviction at the conclusion of a trial by jury. His Honour imposed a total head sentence of imprisonment for nine years, to commence on 4 October 2009 and conclude on 3 October 2018, with a non-parole period of seven years that concluded on 3 October 2016. 21. In a nutshell, the offences were committed in April 2008 against a young woman aged 19, when the defendant was aged 46. The victim lived next door to the defendant and was "a naïve and unworldly young person". During a visit to a park at Watsons Bay, the defendant and the victim sat on some grass, and the defendant engaged in actions constituting indecent assault. The defendant then inserted his fingers in the victim's vagina and licked her vagina without her consent. Later that same day at his residence, whilst the victim was alone in the defendant's partner's son's room, the defendant offered the victim a drink, she asked him to leave, and he demanded that she look up some pornography on a computer for him, threatening that he would kill her if she did not comply. The defendant then put his fingers in the victim's vagina without her consent. 22. Judge Woods, in his remarks on sentence, emphasised: the objective seriousness of the offending; the defendant's "long and tragic history of criminality flowing from deprived family circumstances and exposure to violence"; his extensive criminal history; the lack of "any realistic hope of rehabilitation"; the defendant being "thoroughly institutionalised"; and the conclusion that "a significant factor in sentencing this man should be simple prevention". 23. An appeal against sentence to the Court of Criminal Appeal was successful with regard to an aspect of the sentence structure, but had no practical effect on the total head sentence and total non-parole period. 24. In November 2017, the defendant was charged with committing assault occasioning actual bodily harm against a fellow inmate. CCTV footage showed the defendant deliberately emptying a cup of hot water onto the victim after they exchanged words. The victim suffered burns to his face. In September 2018, the defendant pleaded guilty, and was convicted with no penalty imposed. 25. The defendant was not released at the conclusion of the seven year non-parole period in early October 2016. Indeed, he was not released during the entirety of his parole period of two years. And, at the conclusion of the entirety of the head sentence of nine years in October this year, he was placed on an interim detention order (IDO) by McCallum J: see State of New South Wales v Russell (Preliminary) [2018] NSWSC 1396. 26. The result of the most recent orders made with regard to the defendant is that he has been in continuous custody since early April 2008, a period of ten and a half years. 27. Speaking more generally, since early 1985 (that is, well over three decades), by my analysis of his custodial history the defendant has never lived in the community for a continuous period of more than two years. That is because, the evidence demonstrates, his parole has been breached on every occasion upon which he has been subject to it. And it is noteworthy that the offences that led to the sentences imposed by Judge Woods were committed on 6 April 2008, a little over one month after the defendant was released to parole on 4 March 2008. 28. Turning now from courts and prisons to a discussion of the life of the defendant in broader terms, from an early age he experienced learning difficulties, and was described as "easily slighted". In the past, some have ascribed that to paranoia, not just a quick temper. 29. He commenced to use alcohol at the age of 12, cannabis at the age of 14, and has subsequently been diagnosed with a substance use disorder with regard to alcohol and amphetamines. 30. He has had a number of long-term romantic relationships, but has never married. He has also fathered many children, however the exact number is not entirely clear on the evidence. 31. He has been diagnosed as suffering from mental conditions in the form of anxiety, anti-social personality disorder, and the problem with substances to which I have referred. 32. To complete this brief conspectus, the defendant enrolled in May of this year in the well-known therapeutic program in custody for sex offenders known as CUBIT. Regrettably, he has found the therapeutic process extremely challenging, and has discharged himself from it, and been suspended from it, more than once. A more positive development is that, reasonably recently, the defendant was able to complete a course about avoiding abuse of prohibited drugs and alcohol.