State of New South Wales v Phillip Wayne Lett [2019] NSWSC 593

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Phillip Wayne Lett [2019] NSWSC 593 Hearing dates: 7 May 2019 Date of orders: 17 May 2019 Decision date: 21 May 2019 Jurisdiction: Common Law Before: Wilson J Decision: Interim supervision order for 28 days with two qualified experts appointed to conduct separate examinations of the defendant Catchwords: HIGH RISK OFFENDER – application for extended supervision order – preliminary proceedings – question of risk – whether "unacceptable risk" established – no point of principle Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) Crimes Act 1900 (NSW) Cases Cited: Attorney General for New South Wales v Tillman [2007] NSWCA 119 Lynn v The State of New South Wales (2016) 91 NSWLR 636; (2016) 258 A Crim R 196; [2016] NSWCA 57 Category: Principal judgment Parties: The State of New South Wales (Plaintiff) Phillip Wayne Lett (Defendant) Representation: Counsel: Ms D New (Plaintiff) Mr A Hughes (Defendant)

Solicitors: Mr D Stevens and Ms K Smith of Crown Solicitors Office (Plaintiff) Ms T Reynolds of Legal Aid Commission NSW (Defendant) File Number(s): 2019/58351 Publication restriction: None

Judgment 1. HER HONOUR: Phillip Wayne Lett, the defendant, has been in custody since 24 December 1992 serving sentences imposed upon him for the murder of a six year old boy, and for having homosexual intercourse with a child under 10 years of age, and a child between the ages of 10 and 18 years. These crimes fall within the definition, for the purposes of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the HRO Act"), of either a "serious sex offence" or a "serious violence offence". 2. The overall sentence of 26 years and 6 months which the defendant continues to serve will expire on 23 June 2019. At this time the defendant will, in the ordinary course, be released from custody. When released, he will not be subject to parole because the defendant has at all times since becoming eligible for it on 23 June 2014 refused to be considered. He has explained that refusal by stating that his crimes were so terrible he deserves to serve the full extent of the sentences imposed upon him in prison. 3. By Amended Summons filed with leave on 7 May 2019 the State of New South Wales seeks orders, ultimately, for the imposition of an Extended Supervision Order ("ESO") upon the defendant, pursuant to the HRO Act, for a period of five years. The application came before me on 7 May 2019 at the initial stage of the proceedings, with the State seeking the preliminary orders set out by prayers 1 and 2 of the Amended Summon. That is, the State seeks: 1. An order pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): 1. Appointing two qualified psychiatrists and/or registered psychologists to conduct separate psychiatric or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and 2. Directing the defendant to attend those examinations. 1. An order: 1. Pursuant to s. 10A of the Act, that the defendant by subject to an interim supervision order from midnight on 23 June 2019 ("the interim supervision order"); 2. Pursuant to s. 10C(1) of the Act, the interim supervision order be for a period of 28 days unless renewed on further application by the plaintiff for another period of 28 days or the proceedings are finally determined; and 3. Pursuant to s. 11 of the Act directing that the defendant for the period of the interim supervision order, comply with the conditions set out in the Schedule to this Summons. 1. Although the defendant concedes (for present purposes) that he is a serious sex and serious violence offender (ss 5 & 5A), that he is a supervised offender (s 5I), and that he is in the final 9 months of a custodial sentence (s 6(1)), and thus that the preliminary statutory requirements that apply to the State's application have been met, he opposes the making of both the interim and the final orders. 2. As is common with applications of this nature, a large amount of documentary evidence was tendered by the State. It submitted that, if proved, the evidence establishes that the Court can be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO: s 7(4); s 5B. 3. The defendant contends that the Court could not be so satisfied.