Citation: Attorney General for the State of NSW v Hayter [2007] NSWSC 983
Court: Supreme Court of New South Wales
Date: 30 August 2007
Judge(s): Price J
Background
The Attorney General applied to the Supreme Court seeking preliminary orders under the Crimes (Serious Sex Offenders) Act 2006 (the Act) requiring two qualified psychiatrists to conduct separate examinations of the defendant, a convicted sex offender. The defendant had been sentenced in February 2005 for aggravated indecent assault on a victim under the age of 16 years, and his sentence was due to expire on 28 September 2007. The application was brought in the final six months of his custody, as the Act requires.
The defendant did not oppose the preliminary orders sought, though his counsel reserved the right to contest any further orders. The court nonetheless was required to assess the supporting documentation independently before making any orders.
Legal Issues
- Whether the supporting documentation, if proved, would justify the making of a continuing detention order or an extended supervision order under the Act, thereby satisfying the threshold for appointing psychiatric examiners.
- Whether the court was satisfied that the defendant qualified as a "sex offender" for the purposes of the Act.
- What legal test applies when a court considers preliminary psychiatric examination orders under section 15(4) of the Act.
Decision
Price J confirmed that the court cannot make orders for psychiatric examination merely because the defendant consents. The court must independently assess whether the matters alleged in the supporting documentation would, if proved, justify a continuing detention order or an extended supervision order. Relying on the Court of Appeal's reasoning in Attorney General v Tillman [2007] NSWCA 119, His Honour noted that this threshold is analogous to establishing a prima facie case in committal proceedings, and does not require the court to weigh evidence or predict the final outcome.
The supporting material included an affidavit from a psychologist who assessed the defendant using the STATIC-99 actuarial instrument. The defendant scored nine on that instrument, placing him in a group with an average sexual reoffending rate of 39 per cent over five years and 45 per cent over ten years. The psychologist assessed the defendant as being in the high-risk category for sexual reoffending, noting ongoing dynamic risk factors including intimacy deficits, distorted attitudes, and poor self-regulation.
The defendant's participation in the Custody Based Intensive Treatment (CUBIT) program had been inconsistent. Inappropriate material was found in his cell during a random search, leading to his removal from the program on security grounds. The psychologist considered that the program was unlikely to be completed before the defendant's sentence expired and that further targeted treatment remained necessary.
Price J also had regard to the defendant's criminal history, which included 20 separate sexual offences against more than 12 victims (all underage boys), offences committed while on parole or bail, and a pattern suggesting grooming and sophistication. Having considered all matters to which section 17(4) of the Act directs attention, the court was satisfied the threshold was met and made the preliminary orders sought.
Orders Made
- Two qualified psychiatrists to conduct separate psychiatric examinations of the defendant, with reports to be furnished to the Supreme Court by 4:00 pm on 20 September 2007.
- The defendant directed to attend those examinations.
- The summons listed for hearing on 25 September 2007, with a four-day estimate noted.
- The plaintiff to serve any evidence relied upon by 4:00 pm on 24 September 2007.
- Liberty for the parties to apply to the list judge on one day's notice.
Key Takeaways
- Under section 15(4) of the Crimes (Serious Sex Offenders) Act 2006, a court must be independently satisfied that the supporting documentation, if proved, would justify a continuing detention order or extended supervision order before appointing psychiatric examiners, even where the defendant does not oppose the application.
- The threshold test at this preliminary stage is analogous to a prima facie case, not a final merits assessment. The court is not required to weigh evidence or predict the ultimate result, as confirmed in Attorney General v Tillman [2007] NSWCA 119.
- A high actuarial risk score under the STATIC-99 instrument, combined with adverse dynamic risk factors and an inconsistent treatment history, can together form sufficient supporting material to meet the preliminary threshold under the Act.
- The Act requires that applications be brought within the final six months of the offender's current custody, a procedural constraint that the court noted was satisfied on the facts.
- Offending committed while subject to conditional liberty (such as parole or bail) is a relevant consideration under section 17(4) of the Act when the court assesses whether supporting documentation justifies further orders.
Legislation and Cases Referenced
Legislation:
- Crimes (Serious Sex Offenders) Act 2006 (NSW), ss 7(4), 14(2), 15(4), 17(2), 17(3), 17(4)(b), 17(4)(g)
- Crimes Act 1900 (NSW), s 61M(1)
Cases:
- Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119