State of New South Wales v Conway [2011] NSWSC 588 (17 June 2011)

Last Updated: 20 June 2011

Supreme Court New South Wales

Case Title:	State of New South Wales v Conway
Medium Neutral Citation:	[2011] NSWSC 588
Hearing Date(s):	14 June 2011
Decision Date:	17 June 2011
Jurisdiction:	Common Law
Before:	Simpson J
Decision:	(1) Two qualified psychiatrists be appointed to conduct separate examinations of the defendant and to furnish reports on the results of those examinations by 29 July 2011; (2) The defendant is directed to attend those examinations; (3) The defendant be subject to an interim supervision order for a period of 28 days from 18 June 2011 and comply with certain specified conditions.
Catchwords:	CRIMINAL LAW - Crimes (Serious Sex Offenders) Act 2006 - serious sex offence - preliminary hearing - application for extended supervision order - "unacceptable risk" test - construction of term "criminal history" - manner and extent to which admissions of uncharged sexual misconduct may be taken into account - intellectual disability - dispute as to accommodation conditions - interim supervision order granted
Legislation Cited:	Crimes (Serious Sex Offenders) Act 2006 Crimes Act 1900
Cases Cited:	State of New South Wales v Richard John Darrego [2011] NSWSC 360 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; 178 A Crim R 133
Texts Cited:
Category:	Separate question
Parties:	State of New South Wales (Plaintiff) John Owen Conway (also known as John Allan Conway) (Defendant)
Representation
- Counsel:	Counsel: N L Sharp (Plaintiff) M Johnston (Defendant)
- Solicitors:	Solicitors: Crown Solicitors Office (Plaintiff) Legal Aid NSW (Defendant)
File number(s):	2011/144549
Publication Restriction:

JUDGMENT

1. By Summons filed on 3 May 2011 the plaintiff, the State of NSW, seeks various orders under the Crimes (Serious Sex Offenders) Act 2006 ("the Act"), in respect of the defendant. An Amended Summons was filed on the day of hearing, 14 June 2011. The orders sought in the summons are:
   
   • an order that the defendant be subject to an extended supervision order for a period of 3 years (s 9(1)(a));
     
   • an order appointing two qualified psychiatrists to conduct separate examinations of the defendant and to furnish reports on the results of those examinations, and a further order directing the defendant to attend those examinations (s 7(4));
     
   • an order that, for a period of 28 days from 18 June 2011, the defendant be subject to an interim supervision order and comply with certain specified conditions (s 8(1)).
     
2. The application is opposed by the defendant.
   
3. The long title of the Act is:
   

"An Act to provide for the supervision and detention of serious sex offenders; and for other purposes."

4. The objects of the Act are spelled out in s 3, as follows:
   

"(1) The primary object of this Act is to provide for the extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community.

(2) Another object of this Act is to encourage serious sex offenders to undertake rehabilitation."

5. In pursuit of those objects, the Act empowers this Court, on the application of the State of NSW, and on being satisfied of certain stated criteria (to which I will come) to make an order, in effect, extending, beyond the term of the sentence imposed, supervision of a sex offender (as defined in s 4), who is in custody or is under supervision in consequence of a serious sex offence (as defined in s 5(1)) or an offence of a sexual nature (as defined in s 5(2)): see s 6, s 9.
   
6. Since, by s 6(2), the State of NSW may not make an application until "the last 6 months of the offender's current custody or supervision", and any order must be made during the currency of the offender's sentence (s 6(1)), thus creating some time pressure on both the parties and on the Court, the Act also provides for interim orders (s 8), and for specific pre-trial procedures (s 7).
   
7. Before coming to the factual issues, it is convenient to refer in more detail to the relevant provisions of the Act. For present purposes, they are:
   

" 5 Definitions ...

(1) For the purposes of this Act, a serious sex offence means any of the following offences:

(a) an offence under Division 10 of Part 3 of the Crimes Act 1900 , where:

(i) in the case of an offence against an adult or a child, the offence is punishable by imprisonment for 7 years or more ..."

" 6 Application for extended supervision order

(1) The State of New South Wales may apply to the Supreme Court for an extended supervision order against a sex offender who, when the application is made, is in custody or under supervision:

(a) while serving a sentence of imprisonment:

(i) for a serious sex offence ...

(2) An application may not be made until the last 6 months of the offender's current custody or supervision.

...

(3) An application must be supported by documentation :

(a) that addresses each of the matters referred to in section 9(3), and

(b) that includes a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing a further serious sex offence.

(4) ..."

" 7 Pre-trial procedures

(3) A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow.

(4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders:

(a) appointing:

(i) 2 qualified psychiatrists, or

(ii) 2 registered psychologists, or

(iii) 1 qualified psychiatrist and 1 registered psychologist, or

(iv) 2 qualified psychiatrists and 2 registered psychologists,

to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and

(b) directing the offender to attend those examinations.

(5) If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must dismiss the application."

" 8 Interim supervision orders

(1) If, in proceedings on an application for an extended supervision order, it appears to the Supreme Court:

(a) that the offender's current custody or supervision will expire before the proceedings are determined, and

(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order,

the Supreme Court may make an order for the interim supervision of the offender.

(2) An order under this section commences on the day fixed in the order in that regard (or, if no such day is fixed, as soon as it is made) and expires at the end of such period (not exceeding 28 days from the day on which it commences) as is specified in the order.

(3) An order under this section may be renewed from time to time, but not so as to provide for the supervision of the offender under such an order for periods totalling more than 3 months."

" 9 Determination of application for extended supervision order

(1) The Supreme Court may determine an application for an extended supervision order:

(a) by making an extended supervision order, or

(b) by dismissing the application.

(2) An extended supervision order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision.

(2A) The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence.

(3) In determining whether or not to make an extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant:

(a) the safety of the community,

(b) the reports received from the persons appointed under section 7(4) ... and the level of the offender's participation in any such examination,

(c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious sex offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment,

(d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious sex offence,

(d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community,

(e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs,

(f) the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,

(g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004,

(h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,

(h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,

(i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature."

I have emphasised those parts of the legislation that are of particular immediate relevance.

8. In the present proceedings, the plaintiff seeks:
   
   • orders under s 7(4), for the appointment of two qualified psychiatrists to examine the defendant and further report on the results of the examinations, and directing the defendant to attend the examinations;
     
   • an order under s 8(1), that the defendant be subject to an interim supervision order from 18 June 2011 to 15 July 2011.
     
9. It will be seen that s 8 imposes two pre-conditions on the making of an interim supervision order. The first is that it must appear to the Court that the defendant's current custody or supervision will expire before the proceedings are determined; the second is that the matters alleged in the supporting documentation would, if proved, justify the making, under s 9, of an extended supervision order. As will appear from what follows, the defendant's term of imprisonment will expire on 18 June, before the proceedings (for a final order, under s 9) can be determined. The first pre-condition is met.
   
10. The second pre-condition necessarily directs attention to the requirements of s 9, which prescribes the circumstances in which an extended supervision order may be made. That test is relatively undemanding. It assumes acceptance of what is alleged in the documentation provided under s 6(3) to support the application for a final order.
    
11. In its current form (amended December 2010), s 9(2) provides that an extended supervision order may be made if and only if the Court is satisfied to a high degree of probability that, if not kept under supervision, the offender poses an unacceptable risk of committing a serious sex offence. Sub-section (2A), presumably enacted in order to avoid doubt about the intention of the legislature (see Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327; 178 A Crim R 133) , confirms that the test that the section imposes is not a balance of probabilities test. Sub-section (3) specifies the matters to which the Court must have regard in determining whether or not to make an order. For present purposes, the relevant sub-paragraphs are sub-ss (3)(a) (the safety of the community) and (3)(h) (the offender's criminal history).
    

The application

12. In accordance with s 6(3), the application was supported by a number of affidavits, notably three affirmed by Ms Emma Bayley, a solicitor having the carriage of the application; one affirmed by Ms Theresa Britton, a registered psychologist (annexing an extensive psychological report) and others which it is not necessary here to mention.
    
13. Exhibited to Ms Bayley's affidavit of 10 May 2011 was a considerable volume of documentary material, contained in two large folders (Ex A), which had been produced by various entities in response to an order in writing served pursuant to s 25 of the Act. That material included a significant number of reports concerning assessments made of the defendant, and information gathered from and about him. Of its nature, much of which is contained therein is of a hearing nature. If it were not otherwise admissible, that material is made admissible by s 25(3).
    
14. I am satisfied that the material contained in Ex A satisfies the requirements of s 6(3).
    

The relevant facts and circumstances

15. On 19 September 2007 the defendant was sentenced to imprisonment for 4 years, commencing on 19 June 2007, with a non-parole period of 2 years and 3 months. The non-parole period expired on 18 September 2009. The total sentence will expire on 18 June 2011. The first of the s 8 pre-conditions is therefore met. The defendant was in fact released to parole on 27 April 2011.
    
16. It is not in issue that the defendant is, within the meaning of the definition in s 4, a sex offender, who has been convicted of a serious sex offence, as defined in s 5(1). That is because, on 19 September 2007 he was convicted (following his plea of guilty) of a single count of sexual intercourse with a person under the age of 10 years, an offence against s 66A of the Crimes Act 1900, which appears in Div 10 of Pt 3 of the Crimes Act , and carries a maximum penalty of imprisonment for 25 years (see s 5).
    
17. The defendant was born in November 1986; the offence was committed on 5 March 2007, when he was 20 years of age. The victim was 5 years of age, and was a relative of the defendant.
    
18. The defendant has not been convicted of any other offences. He is currently housed in accommodation in Woolgoolga provided by an entity known as the Community Justice Program.
    
19. The documentation provided by the plaintiff pursuant to s 6(3) is extensive and comprehensive. It includes a report of a registered psychologist containing the assessment required under s 6(3)(b), and addresses the matters specified in s 9(3). The material indicates that, during his period of incarceration, the defendant has been the subject of quite intense assessment and scrutiny. There are records indicating that he has admitted that, on a number of occasions over the years, he has engaged in conduct that, subject to questions of mens rea , would constitute sex offences. The psychologist's report asserts that the defendant has "self reported" to numerous people a life-long sexual attraction to underage children, and a general "hyper-sexuality". The report assesses the risk of sexual recidivism as high (para 90). The defendant is assessed as having "borderline intellectual ability" with "paedophilic urges".
    
20. Despite the bulk of material presented, and the defendant's opposition to the order sought, the disputed issues were very limited.
    
21. On behalf of the defendant it was argued that, in considering the matters itemised in s 9(3) as relevant to the determination whether to make an order ought be made or not, the consideration specified in s 9(3)(h) (the offender's criminal history) ought not to include any offences other than those that resulted in conviction or finding of guilt. I do not accept this construction. If it were correct, the words "criminal history", which are the principal subject of the sub-paragraph, would add nothing to that which appears in parentheses; and nor would the words "and any pattern of offending behaviour" that follow the parentheses.
    
22. In my opinion, it is appropriate to take into account those instances of sexual misconduct to which the defendant has admitted. Having regard, particularly, to the defendant's intellectual disability, it was submitted that an issue arises whether those instances could properly be labelled part of his "criminal history". This was because it could not be assumed that the necessary mens rea accompanied the actions said to constitute the offences. Some of the instances appear to have occurred before the defendant acquired the age of criminal capacity (10 years), and others during the period of doli incapax , in which it is necessary for the prosecution to establish a capacity in the alleged offender to understand the nature of the conduct in question.
    
23. I accept that a question arises, and may well arise on a final hearing, concerning the extent to which some of the conduct referred to may be taken into account. However, as was conceded on behalf of the defendant, even if it cannot be shown that the defendant could have been convicted of offences in respect of those episodes of misconduct, and that they therefore may not be taken into account as "criminal history", that he engaged in the conduct is clearly relevant to sub-para (i), and, I would add, to sub-para (a). In my opinion, the whole of the conduct that is attributed to the defendant is relevant to the present consideration.
    
24. The documentation provided amply demonstrates, for the purposes of s 8(1)(b), that the matters alleged would, if proved, justify the making of an interim supervision order, and I propose to make such an order.
    
25. The second issue in dispute concerned the construction of s 9(2). This section is of recent origin, having been inserted into the Act with effect from 7 December 2010, replacing a formulation which included the words:
    

"... is likely to commit a further serious sex offence."

26. Counsel were able to provide only two instances on which the section has previously been considered by this Court: State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 (R A Hulme J); State of New South Wales v Richard John Darrego [2011] NSWSC 360 (McCallum J). R A Hulme J considered that the test in s 9(2) would be satisfied:
    

"... if there is a risk that the person will commit a serious sex offence which is present to a sufficient degree so that the safety and protection of the community cannot be ensured unless an order is made ." (emphasis added)

27. In reaching this view, R A Hulme J drew on s 3 of the Act, stating the objects of the Act.
    
28. In Darrego , McCallum J took a different view, adopting, from another sphere of law, the language of medical negligence, and importing the notion of "material risk".
    
29. I note that neither purported to express a final view.
    
30. While it is not necessary to express a final view on the issue, I state a preference for the approach taken by R A Hulme J. This is, in part, because it draws closely upon the objects and the language of the Act itself, and not upon a different area of legal discourse. Whichever is the better interpretation, for the purposes of an interim supervision order, the test is satisfied. I will therefore make an interim supervision order under s 8(1).
    
31. In anticipation of that result, the plaintiff proposed, pursuant to s 6(4), a series of conditions to be imposed for which provision is made by s 11. After negotiation, only one of these was opposed. This was an order requiring that the defendant reside in such accommodation as is approved in advance by the Departmental Supervising Officer.
    
32. As mentioned above, the defendant is currently housed in a facility, which is reasonably secure, in Woolgoolga. He, I was advised, would wish to live with his mother in a different part of NSW. It is not clear that that accommodation is available to him; moreover, it is the location in which he committed the offence of which he was convicted, and where, it appears, he would be likely to be in contact with the victim of the offence, and other children.
    
33. In the circumstances, and having regard, inter alia , to the relatively limited operation of an interim supervision order, I am satisfied that the condition proposed is, as an interim measure at least, an appropriate one. I will include it in the conditions I make.
    
34. I make the orders in accordance with the Short Minutes proposed by the plaintiff, attached hereto.
    

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Short Minutes