Citation: State of New South Wales v Stewart (No 2) [2016] NSWSC 981
Court: Supreme Court of New South Wales
Date: 15 July 2016
Judge: Button J
Background
The State of New South Wales applied for a continuing detention order (CDO) against a 60-year-old man with a decades-long history of sexual offending against young boys. The defendant had been convicted of serious sex offences involving more than 20 young victims, with the index offences involving the sexual abuse of a 12-year-old boy recruited through a classified advertisement in 1998. He had been continuously imprisoned in New South Wales since December 1998, with his sentence due to expire on 21 July 2016.
The State sought a CDO of 12 months under the Crimes (High Risk Offenders) Act 2006 (NSW). In an unusual development, the defendant not only consented to the making of a CDO but actively sought a longer order of 18 months to 2 years, on the basis that he wished to complete his custody-based treatment program in full.
At the time of the hearing, the defendant was also bail refused on further charges in New South Wales, and Queensland police had indicated an intention to extradite him to face pending child sexual assault charges.
Legal Issues
- Whether the defendant meets the central test under section 5B of the Crimes (High Risk Offenders) Act 2006 as a high risk sex offender.
- Whether a CDO or an extended supervision order (ESO) is the appropriate order, having regard to section 5D(1) of the Act.
- Whether the discretion to decline to make any order should be exercised.
- What length the CDO should be, given the State sought 12 months and the defendant sought 18 months to 2 years.
- Whether an ESO should be imposed to follow any CDO.
Decision
The central test under section 5B: Button J was satisfied, independently of the parties' concessions, that the central test under section 5B was established. The defendant's 40-year history of deliberate, predatory offending against young boys supported an overwhelming inference that he would very likely reoffend sexually if unsupervised. That conclusion was reinforced by his refusal to consent to anti-libidinal medication (at [77]-[78]).
Psychiatric evidence: Two court-appointed psychiatrists, Dr O'Dea and Dr Ellis, provided reports that Button J summarised at length. Dr O'Dea diagnosed the defendant with paedophilic disorder and identified a significant risk of further serious sex offending, finding that psychological treatment programs alone would be insufficient and that anti-libidinal medication was essential to managing risk in the long term (at [25]-[30]). Dr Ellis reached broadly similar conclusions, though he considered community-based treatment more effective than custody-based treatment. Both experts identified the defendant's refusal of medication as a significant risk factor (at [39]-[45]).
CDO rather than ESO: Button J found that an ESO would be thoroughly inadequate, not only because no arrangements had been made for the defendant's conditional release in the community, but because even the most rigorous ESO would not sufficiently protect the community from the crimes the defendant would almost inevitably commit (at [81]-[82], [86]).
Length of the CDO: The court imposed a CDO of 12 months, as sought by the State, rather than the longer period sought by the defendant. Button J expressed reluctance to impose a period of detention on a citizen exceeding that sought by the moving party. He also noted a real possibility that the defendant's position was motivated by a desire for a tactical advantage relating to his conditions of custody, rather than purely by rehabilitative intent (at [83]-[85]).
Orders Made
- The defendant is subject to a continuing detention order under sections 5D and 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW) for 12 months, commencing 15 July 2016 and expiring 14 July 2017.
- The Registry is to issue a warrant under section 20(1) of the Act for the committal of the defendant to a correctional centre for that period.
Key Takeaways
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Button J found the central test under section 5B of the Crimes (High Risk Offenders) Act 2006 established on the evidence, noting that the finding rested on the defendant's entire offending history and his refusal to take anti-libidinal medication, independently of the parties' concessions (at [77]-[78]).
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Where no practical arrangements exist for a defendant's conditional release into the community, a court may find that even the most stringent ESO would not adequately protect the community, making a CDO the only appropriate order under section 5D(1) (at [81], [86]).
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Under section 5B, a court exercises its own independent judgment on whether the statutory test is met, even where both parties have conceded the point (at [23]).
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The Supreme Court declined to impose a CDO longer than that sought by the moving party, expressing a general reluctance to detain a citizen beyond the period pressed by the State, and flagging that apparent consent to a longer order may warrant scrutiny as to the defendant's true motivation (at [83]-[85]).
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Both psychiatrists' reports highlighted that psychological sex offender treatment programs alone are unlikely to produce significant long-term risk reduction for an entrenched paedophilic offender, and that anti-libidinal medication is a key component of adequate risk management in such cases (at [28]-[29], [41]).
Legislation and Cases Referenced
Legislation
- Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)
- Child Protection (Offenders Registration) Act 2004 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 5, 5B, 5C(1), 5D, 5D(1), 13B, 17, 17(1)(b), 17(4), 17(4)(a), 17(4)(b), 17(4)(c), 17(4)(d), 17(4)(d1), 17(4)(e), 17(4)(f), 17(4)(g), 17(4)(h), 17(4)(h1), 17(4)(i), 19, 20(1)
Cases
- State of New South Wales v PS [2016] NSWSC 504