Citation: State of New South Wales v Hayter [2008] NSWSC 394
Court: Supreme Court of New South Wales, Common Law Division
Date: 6 May 2008
Judge(s): Hislop J
Background
The State of New South Wales applied for a continuing detention order under the Crimes (Serious Sex Offenders) Act 2006 against the defendant, a convicted serious sex offender. The defendant had previously served a gaol term of three years and three months, after which a six-month continuing detention order was made in October 2007 on the basis that he posed a high risk of reoffending and required treatment in custody.
The October 2007 order was premised on the expectation that the defendant would complete the CUBIT programme (a cognitive behavioural treatment programme for sex offenders, available only to persons in custody) and be stabilised on anti-libidinal medication within approximately six months. It was acknowledged at that time that a further application might be necessary if more time was needed.
By the time of the present application, the defendant had been suspended from the CUBIT programme following an incident with another participant, and his progress prior to suspension had been assessed as poor. The State sought a new continuing detention order of up to five years. Both parties ultimately agreed that twelve months was an appropriate period.
Legal Issues
- Whether the defendant remained likely, to a high degree of probability, to commit a further serious sex offence if not detained.
- Whether adequate supervision could be provided by an extended supervision order rather than continuing detention.
- What period of continuing detention was appropriate in the circumstances.
Decision
Hislop J was satisfied to a high degree of probability that the defendant would commit a further serious sex offence if released into the community without adequate supervision. The expert evidence was unanimous on this point, and the defendant did not contest it. Concerning behaviour documented during the preceding months, including the possession of lists of children's names described by the defendant as material for targeting future victims, reinforced the expert assessments.
The court also accepted, on the basis of uncontested expert evidence, that an extended supervision order would not provide adequate supervision. The defendant himself did not argue to the contrary. Hislop J noted that electronic monitoring does not enable immediate response and provides limited protection against a person intent on offending, and that the defendant's history cast doubt on whether compliance with conditions could be relied upon.
On the question of duration, both parties agreed that twelve months was appropriate. This period was intended to allow the defendant to resume and complete the CUBIT programme (anticipated at earliest from late May 2008) and then participate in a maintenance programme before any consideration of release. Hislop J accepted twelve months as appropriate, noting that the Act permits either party to apply to vary or revoke the order if circumstances change.
Orders Made
- The defendant is to be detained in a correctional centre for twelve months from 6 May 2008.
- A warrant was issued pursuant to s 20(1) of the Crimes (Serious Sex Offenders) Act 2006 for the defendant's committal to a correctional centre for the duration of the continuing detention order.
Key Takeaways
- Under the Crimes (Serious Sex Offenders) Act 2006, a continuing detention order requires the court to be satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if not detained or subject to adequate supervision.
- Where all expert evidence supports continued detention and the defendant does not contest that evidence, the court will proceed on that uncontested basis in assessing the risk of reoffending.
- A continuing detention order may be renewed where treatment objectives from a prior order have not been met, provided the statutory threshold is still satisfied.
- The Supreme Court confirmed that electronic monitoring is not equivalent to physical detention when assessing whether an extended supervision order provides adequate protection to the community.
- Continuing detention orders need not match the maximum period sought: the court settled on twelve months, the period both parties agreed was appropriate, with the Act's variation and revocation provisions available if circumstances change.
Legislation and Cases Referenced
Legislation:
- Crimes (Serious Sex Offenders) Act 2006 (NSW), ss 4, 16, 17(1)(b), 19, 20(1)
Cases:
- Attorney General for the State of New South Wales v Hayter [2007] NSWSC 1146
- Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327