Citation: State of New South Wales v Scerri [2011] NSWSC 683
Court: Supreme Court of New South Wales
Date: 7 July 2011
Judge: Hoeben J
Background
The State of New South Wales applied for orders under the Crimes (Serious Sex Offenders) Act 2006 in relation to a male offender serving a sentence for sexual intercourse without consent, an offence committed in 2002. The offender had been released on parole in February 2011, with his sentence and parole order due to expire in September 2011. He had prior convictions for eight serious sexual offences committed across separate incidents in 1989 and 2002, involving four victims.
As final relief, the State sought an extended supervision order (ESO) under s 9(1) of the Act. Before that final hearing could occur, a preliminary hearing was held on 1 July 2011. At the preliminary stage, the State sought only the appointment of psychiatrists to examine the offender, not an interim supervision order.
The offender's counsel conceded, for the purpose of the preliminary hearing, that the supporting documentation would likely satisfy the threshold test for making a supervision order. The offender did not oppose the appointment of examining psychiatrists and indicated willingness to attend. Despite that consent, the court was required to independently assess whether the statutory criteria were met.
Legal Issues
- Whether the court must independently apply the s 7(4) threshold test even where the defendant does not oppose the orders sought at the preliminary hearing stage.
- Whether the supporting documentation satisfied s 7(4) of the Act, such that the matters alleged would, if proved, justify the making of an extended supervision order.
- Whether the defendant met the threshold definitions of "sex offender" under the Act, including whether being on parole constituted "current custody or supervision."
- How the amended s 9(2) test of "unacceptable risk" should be interpreted at the preliminary hearing stage.
Decision
Hoeben J confirmed that a defendant's consent or non-opposition does not relieve the court of its obligation to independently assess whether the s 7(4) threshold is met. His Honour agreed with the approach taken in Attorney-General for the State of New South Wales v Hayter [2007] NSWSC 983, noting that the statutory language of s 7(4) and (5) leaves the determination with the court. Where no opposition exists, the process is facilitated rather than bypassed.
At the preliminary stage, the applicable test resembles the prima facie case test used by Magistrates in committal proceedings. The court's task is not to weigh the evidence, predict the final result, or consider what the defendant might call at a final hearing. The purpose is twofold: to filter out unmeritorious applications early, and to secure independent expert opinions before the final decision is made.
On the interpretation of s 9(2), which was amended in December 2010 to replace the former "likely to commit" formulation with "unacceptable risk," Hoeben J adopted the construction offered by Davies J in State of New South Wales v Richardson (No 2) [2011] NSWSC 276. Under that formulation, the test is satisfied where a risk of committing a serious sex offence is present to a sufficient degree that the community's safety cannot be ensured without an order.
Having reviewed the supporting material, including psychiatric and psychological assessments that identified a moderate to high risk of sexual re-offending and multiple risk factors across relevant domains, Hoeben J was satisfied that the threshold under s 7(4) was met. The court ordered the appointment of two psychiatrists to conduct separate examinations and directed the offender to attend.
Orders Made
- Two psychiatrists (Dr Jeremy O'Dea and Dr Anthony Samuels) appointed under s 7(4) of the Act to conduct separate examinations of the defendant, with reports to be filed by 8 August 2011.
- The defendant directed to attend those examinations.
- Matter listed for mention on 12 August 2011 before the Duty Judge.
- Liberty to apply granted on two days' notice.
- Access to the court file restricted to persons with leave of a Judge; parties to be notified of any non-party access application.
- Final hearing fixed for 8 and 9 September 2011 (two-day estimate).
Key Takeaways
- A defendant's consent to orders at a preliminary hearing under the Crimes (Serious Sex Offenders) Act 2006 does not discharge the court's independent obligation to be satisfied under s 7(4). The statutory test must still be applied.
- The threshold test at the preliminary hearing stage is analogous to the prima facie case test in committal proceedings: the court asks whether the matters alleged would, if proved, justify a supervision order. It does not weigh evidence or predict the final outcome.
- Under the December 2010 amendment to s 9(2), the "unacceptable risk" standard is met where a risk of serious sex offending exists to a degree sufficient that community safety cannot be ensured without an order. Hoeben J applied this formulation at the preliminary stage.
- Being on parole while serving a sentence of imprisonment falls within the extended definition of "current custody or supervision" under s 6(1)(a) of the Act, bringing parolees within the scheme's reach.
- The Act also restricts when an application may be made: under s 6(2), the State cannot apply until the offender is within the last six months of their current custody or supervision period.
Legislation and Cases Referenced
Legislation:
- Crimes (Serious Sex Offenders) Act 2006 (NSW), ss 3, 6, 7, 8, 9
- Crimes Act 1900 (NSW), s 61I
Cases:
- Attorney-General for the State of New South Wales v Hayter [2007] NSWSC 983
- Attorney-General for the State of NSW v Tillman [2007] NSWCA 119
- State of New South Wales v Bastian [2011] NSWSC 641
- State of NSW v Brookes [2008] NSWSC 150
- State of New South Wales v Richardson (No 2) [2011] NSWSC 276