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Supreme Court 17 March 2011

State of New South Wales v Richard John Darrego

[2011] NSWSC 360

Sexual offences
CRIMINAL LAW CRIMES (SERIOUS SEX OFFENDERS) ACT 2006 SERIOUS SEX OFFENDER

Citation: State of New South Wales v Richard John Darrego [2011] NSWSC 360
Court: Supreme Court of New South Wales
Date: 17 March 2011
Judge(s): McCallum J

Background

The State of New South Wales applied for an extended supervision order (ESO) under the Crimes (Serious Sex Offenders) Act 2006 in respect of a sex offender who had been convicted of aggravated indecent assault against a male child. At the time of the application, the defendant was in custody serving a sentence for that offence, and the application was brought within six months of the conclusion of his custodial term, satisfying the threshold requirements under the Act.

The matter came before McCallum J for a statutory preliminary hearing under s 7(3) of the Act. At the outset, the defendant conceded that the supporting documentation could satisfy the court at this preliminary stage, though the court noted that such a concession does not remove the obligation to independently apply the statutory test.

A psychologist's report prepared in support of the application initially contained an error overstating the number of victims. The psychologist later corrected this but confirmed the error did not alter any of his conclusions, which identified an entrenched pattern of paedophilic behaviour based on the defendant's offending history.

  • Whether the supporting documentation, if proved, would justify the making of an extended supervision order under s 7(4) of the Crimes (Serious Sex Offenders) Act 2006
  • What the correct construction of the new "unacceptable risk" test in s 9(2) is, following amendments introduced by the Crimes (Serious Sex Offenders) Amendment Act 2010
  • Whether an interim supervision order under s 8 of the Act should also be made

Decision

The preliminary hearing test. McCallum J confirmed that the court must independently apply the statutory test even where, as here, the defendant concedes the point. Under s 7(4), the court must be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. The court found that the material before it, including the psychologist's report and the defendant's offending history, amply satisfied that threshold.

The new "unacceptable risk" test. The Crimes (Serious Sex Offenders) Amendment Act 2010, which took effect on 7 December 2010, replaced the earlier "likely to commit" formulation with a requirement that the court be satisfied to a high degree of probability that the offender poses an "unacceptable risk" of committing a serious sex offence if unsupervised. McCallum J noted that the only prior consideration of this new formulation was the provisional view of RA Hulme J in State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118, which framed the test in terms of whether the risk was such that community protection could not be "ensured" without an order.

McCallum J expressed some reservation about that formulation, noting that the Act does not in terms require community protection to be "ensured." Her Honour suggested that guidance could be drawn from the medical negligence jurisprudence on material risk, particularly Gummow J's analysis in Rosenberg v Percival (2001) 205 CLR 434, which emphasised the importance of defining a risk by reference to the circumstances in which harm could occur, its likelihood, and its potential severity. Her Honour indicated that the court's task is to form a judgment about whether the risk posed by the offender is unacceptable, without adding a further gloss to the statutory language. This observation was expressly provisional, given the preliminary nature of the hearing.

Interim supervision order. The State also sought an interim supervision order under s 8 of the Act. The defendant did not oppose the interim orders, while reserving his right to contest the matter at the final hearing. McCallum J found that this position was consistent with the statutory framework, which requires the court to assume at the preliminary stage that the allegations are proved. Her Honour exercised her discretion to make the interim orders, finding them appropriate having regard to the supporting material.

Orders Made

  • An order appointing two experts (psychiatrists or psychologists) to conduct separate examinations of the defendant and furnish reports to the court
  • An order directing the defendant to attend those examinations
  • An interim supervision order under s 8 of the Act
  • The proceedings were listed for further mention on 3 May 2011

Key Takeaways

  • A defendant's concession at a preliminary hearing under s 7(4) of the Crimes (Serious Sex Offenders) Act 2006 does not relieve the court of its obligation to independently assess whether the statutory test is satisfied.
  • The "unacceptable risk" test in s 9(2), introduced by the 2010 amendments, requires the court to be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if unsupervised. The question of exactly what "unacceptable risk" means remained, at this stage, a provisional and open question.
  • McCallum J declined to endorse the formulation in Thomas that the test is met when community protection cannot be "ensured," finding that formulation added a gloss not found in the statutory language itself.
  • Jurisprudence on material risk in medical negligence cases, particularly the analysis in Rosenberg v Percival, was identified as potentially useful in framing how courts approach the definition and assessment of risk under the Act.
  • Under s 9(2A), introduced by the same 2010 amendments, the court is not required to find a probability exceeding fifty per cent that a further offence will be committed. This codified the majority position in Tillman v Attorney General for NSW [2007] NSWCA 327.

Legislation and Cases Referenced

Legislation
- Crimes (Serious Sex Offenders) Act 2006 (NSW), ss 3, 4, 5, 6, 7, 8, 9
- Crimes (Serious Sex Offenders) Amendment Act 2010 (NSW)
- Crimes Act 1900 (NSW), s 61M(2)

Cases
- Attorney General for the State of New South Wales v Hayter [2007] NSWSC 983
- State of New South Wales v Manners [2008] NSWSC 1242
- State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118
- Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327
- Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434