State of New South Wales v Wilde [2017] NSWSC 1056

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Wilde [2017] NSWSC 1056 Hearing dates: 10 August 2017 Date of orders: 10 August 2017 Decision date: 10 August 2017 Jurisdiction: Common Law Before: Campbell J Decision: Orders in accordance with short minutes of order. Catchwords: CIVIL PROCEDURE – Interlocutory applications – Interim supervision order – High risk sex offender – Whether current extended supervision order has expired – Meaning of "in lawful custody" in s 10(2) Crimes (High Risk Offenders) Act 2006 (NSW) – Held that time spent in custody bail refused was "lawful custody" – Whether the matters alleged, if proved, justify the making of a high risk sex offender extended supervision order – Interim supervision order granted Legislation Cited: Bail Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Criminal Procedure Act 1986 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Lynn v State of New South Wales [2016] NSWCA 57 State of New South Wales v Wilde [2014] NSWSC 305 Category: Procedural and other rulings Parties: State of New South Wales (Plaintiff) Mr John Alan Wilde (Defendant) Representation: Counsel: Ms D New (Plaintiff) Defendant self-represented Solicitors: Crown Solicitor (Plaintiff) File Number(s): 2017/237568 Publication restriction: Nil

EX TEMPORE Judgment (REVISED) 1. By summons filed 4 August 2017 the State of New South Wales ("the State") seeks a third extended supervision order ("ESO") in respect of the defendant, Mr Wilde, under the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"). I am required to decide whether an interim order should be made under the provisions of section 10A of the Act. 2. Mr Wilde, who is self-represented today, has raised a preliminary question about the Court's power to make any order, whether final or interim, in his case. The question turns upon the provisions of section 5I and section 10 of the legislation.

Arguments on preliminary point 1. The State says that the requirements of section 5I are satisfied in this case because Mr Wilde is a sex offender (he has been convicted three times in respect of serious sex offences) who is under supervision pursuant to an extended supervision order of three years' duration made by Hall J on 1 April 2014. The State submits that the period of that order, which would otherwise have expired, has been extended by operation of law under section 10 of the Act. 2. Section 10(1A) provides that an extended supervision order expires at the end of the period specified in the order or, if the order is suspended for any period, "the period specified … plus each period during which the order is suspended". Under section 10(2) an order is suspended "while the offender is in lawful custody." 3. It is common ground that Mr Wilde was in custody for 133 days from 29 March 2015 until 10 August 2015. Mr Wilde says, and the onus lies upon the State, that that custody was not lawful because the conviction for the offence for which he was held in custody has been quashed by Acting Judge Delaney in the District Court under the Crimes (Appeal and Review) Act 2001 (NSW) on 18 April 2017. Mr Wilde argues that this quashing order sets aside the legal effect of his conviction and the period of custody to which I have referred was accordingly unlawful and may not be counted under section 10 of the Act. 4. The effect of this argument, if correct, is that the extended supervision order expired at the end of the period specified in the order, namely, three years after 1 April 2014. If this is correct, I accept that I have no power to accede to the State's application for an interim order, nor does the Court have any power to grant the final relief sought.

2015 convictions 1. In order to resolve this issue it is necessary to descend into the facts as disclosed by the evidence read before me by both parties. This consists of, for the State, the affidavit of Ms Nayomi Senanayake sworn 4 August 2017. That affidavit attaches two volumes of material which have been admitted into evidence as exhibit NS-1. Mr Wilde read two affidavits by him: the first of 4 August 2017; and the second of 8 August 2017. I should also interpolate that Mr Wilde intended to annex the reasons of Acting Judge Delaney to his affidavit but overlooked that. He forgot to bring the judgment today. However, on the approach I will take, I am satisfied that he is not disadvantaged by that omission. 2. From this material it appears that on 29 March 2015 Mr Wilde was charged with four offences. They were an offence of riding his motorbike whilst disqualified and three breaches of the ESO made by Hall J. The first alleged breach of the ESO derived from the same circumstances underpinning the ride whilst disqualified charge. 3. Breach of an ESO carries a maximum penalty of imprisonment for five years under section 12 of the Act. It is obviously a serious indictable offence under the Crimes Act 1900 (NSW) but the prosecution may elect to proceed summarily under the Criminal Procedure Act 1986 (NSW). More importantly for present purposes, an offence of breaching an ESO is a show cause offence under section 16A and section 16B(1)(i) of the Bail Act 2013 (NSW). Perhaps for this reason the evidence (before me does not disclose this one way or the other) when the matter first came before the Local Court. Mr Wilde was refused bail and was remanded in custody. 4. When the matters were dealt with summarily in the Local Court on the election of the prosecution on 10 August 2015, the prosecution withdrew two of the charges of breaching of the ESO, proceeding with the ride whilst disqualified charge and the alleged breach of the ESO related to it. Mr Wilde was convicted of those charges upon his plea of guilty and non-custodial punishment was imposed. In respect of the breach of the ESO, a suspended sentence of 12 months' imprisonment was imposed on condition that Mr Wilde enter into a good behaviour bond and, for the drive whilst disqualified, a fine and a bond under section 9 of two years' duration were imposed.

Conviction set aside 1. For reasons which again are not clear because they are not fully explained on the evidence, it was not until 18 April 2017 that Mr Wilde's appeal under the Crimes (Appeal and Review) Act (2001) came before the District Court. What is clear from the "bail report" which is behind tab 1 of Ms Senanayake's affidavit, is that Acting Judge Delaney allowed the appeal and made an order quashing the ride whilst disqualified conviction. 2. The evidence before me does not indicate that the conviction for the related breach of the extended supervision order was before, or dealt with by, his Honour. Mr Wilde has said from the bar table that his understanding is that it was. What, I suppose, follows is that if he was, as he has been, acquitted of the ride whilst disqualified charge, the factual basis for the related breach of the ESO is certainly, to say the least, called into question.

Decision on preliminary point 1. It seems to me, however, that it does not really matter whether Mr Wilde's recollection is to be preferred to the contents of the bail report. In my judgment, the legal answer to this question is the same whether only one, or both, of the convictions was, or were, quashed. 2. Working on the assumption favourable to Mr Wilde that both convictions have been quashed or set aside, I am of the view that the State has established that, I stress even if Mr Wilde was acquitted of both charges, his period in custody on remand between 29 March 2015 and 8 August 2015 was "lawful custody" within the meaning of section 10 of the Act. 3. It is an unavoidable feature of our system of criminal justice that a significant proportion of the persons charged with criminal offences who are denied bail and held in custody on remand, sometimes for extended periods, will be acquitted of those charges. This is a function of the irreducible requirement that guilt must be proved beyond reasonable doubt. It stands to reason that many people who have come under the suspicion on reasonable grounds of law enforcement personnel will be acquitted because the evidence does not persuade a judge, a magistrate or a jury of their guilt beyond reasonable doubt. 4. However, an acquittal, even after an extended period on remand, does not mean that the period in custody preceding the acquittal was unlawful; quite the contrary. Where a person has properly been brought before a court on a criminal charge and bail has been refused in the exercise of the bail authority's power under the Bail Act 2013 (NSW), the person's custody remains lawful notwithstanding a subsequent acquittal. 5. Accordingly I rule against Mr Wilde on his preliminary legal point. In my judgment the period specified in Hall J's order was extended by operation of law under section 10(1A) of the Act by the period of 133 days that Mr Wilde spent in lawful custody in 2015.

Interim supervision order application 1. I accept the calculations put forward by the State that the current ESO expires on 12 August 2017. When the summons was filed Mr Wilde was a "supervised sex offender" within the meaning of section 5I of the Act. 2. I stress that the power I am asked to exercise today is the power to make an interim order under the provisions of section 10A of the Act. I am not asked to make a final decision or to engage with the merits of the case brought by the State or the defence mounted by Mr Wilde. The determination of these proceedings on the merits must abide a final hearing on the summons.

Principles 1. Under section 10A of the Act I am empowered to make an order for the interim supervision of Mr Wilde if in these proceedings for an ESO it appears: (a) that the offender's current...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 a high risk sex offender extended supervision order. 1. From what I have said, it is obvious that the current supervision will expire before these proceedings, that is to say these proceedings for final relief, could possibly be determined. It is necessary therefore for me to focus on the second condition. 2. Section 5B of the Act provides that: An offender can be made the subject of a high risk sex offender extended supervision order...as provided for by this Act if and only if the offender is a high risk sex offender. That condition will be met if the offender is a sex offender, as Mr Wilde is, and in due course at the final hearing 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 … is not kept under supervision": s 5B(2). That determination does not require a determination that the risk of Mr Wilde committing a serious sex offence is more likely than not: see section 5B(3). 1. Having regard to the content of the argument before me I think it is important to direct myself in accordance with the judgment of the Court of Appeal in Lynn v State of New South Wales [2016] NSWCA 57. In particular (at [148]) Gleeson JA said, "It can be readily accepted that orders for the supervision or detention of a "high risk [sex] offender" involve a significant restriction on the personal liberty of the subject outside the ordinary principles of the common law. The basis for that interference with liberty in specific cases is to be found in Parliament's determination that such orders may be made for the protection of the public. The pre-condition for the making of such orders is that the offender is a "high risk [sex] offender"". (Citation omitted.) It would subvert the language of the statute if the interests of the offender in liberty and privacy were to be taken into account in the assessment of the threshold of "unacceptable risk" in section [5B(2)] of the Act. There is no "balancing" exercise involved in the court's assessment of the threshold of "unacceptable risk"." His Honour's statement of principle is, of course, directed to the type of decision that is to be made after a final hearing, but it remains apposite for me to bear the principle firmly in mind when considering, in terms of sections 10A and 10B, whether the matters alleged in the supporting documentation would, if proved to the requisite high standard at the final hearing, justify the making of the order.

Mr Wilde's submission 1. I have emphasised this at this point in my reasons because Mr Wilde, of whom I think it can be said ably presented his case, both by cross-examining the psychologist, Mr Ardasinski, and by putting arguments before me, highlighted his very substantial compliance with previous orders over a period of eight years and his record of only relatively minor infringements. On the basis of this material he argued strongly that a continuation of the orders would constitute, in my terms not his, a most egregious curtailment of his general right to enjoy the liberty shared by all members of our community. 2. There is force in that argument on some levels. However, as I have tried to indicate, that consideration is not one which can govern my decision. It is not one in accordance with what Gleeson JA said in Lynn, which I am entitled to balance against the conclusion I make about whether the evidence before me is capable of satisfying the Court on a final hearing that the risk he presents is unacceptable.

Decision 1. I should also say that, as the psychologist said in his report, and as he confirmed under cross-examination by Mr Wilde, given Mr Wilde's record of compliance, it is unlikely that he will commit a serious sex offence again, even if unsupervised. 2. However, as I have emphasised, the statutory test does not require the State to prove that the risk of further serious offending of this type is more likely than not. It is well established by the jurisprudence informing the Court's understanding of the Act that even a low risk of serious offending may be, in circumstances, unacceptable. I repeat that is not for me to determine finally today. 3. I direct myself that the Court determining an application for an extended supervision order must have regard to the requirements of section 9(3) of the Act. I do not propose to go through each of the paragraphs of subsection (3) for the purpose of making a decision about an interim order. Suffice it to say that I am satisfied, on the grounds set out by Ms New of counsel in her careful written submissions, a copy of which Mr Wilde has, that there is evidence dealing with each of the mandatory considerations in section 9(3), and I am satisfied that at the final hearing there will be evidence available which, if accepted by the judge, will be capable of satisfying the Court to the high degree of probability necessary that there is an unacceptable risk in the statutory sense. That is not to say that I have formed the view that the Court will be driven to that conclusion. Simply, as required at this preliminary and interim stage, I find the evidence led before me satisfies the second condition set out in section 10A.

Other relevant considerations 1. I wish to deal briefly with some of the matters that were raised. I accept that Mr Wilde disputes that he suffers from the personality disorder that Hall J found in his 2014 decision (State of New South Wales v Wilde [2014] NSWSC 305). And he puts forward innocent explanations for the various matters of non-compliance which were raised at that time. If he chooses to give evidence again, doubtless those matters may be taken into account by a judge determining the final application. 2. There is, I think, a matter of concern that has arisen, as pointed out by Ms New, in relation to the charges that Mr Wilde is facing which are before the Local Court again on 16 August next. In referring to these matters, I am not in any way prejudging the matter which will be before the Local Court. Mr Wilde has put forward considerations which he will rely upon in his defence when the matter comes before the Local Court for hearing, and it may well be that his confidence in his innocence will in due course be seen to be well placed. I am in no position to say one way or the other. 3. It is relevant, however, to consider, when one has regard to the circumstances of Mr Wilde's previous convictions for sexual offences, that he was found to have in his possession a knife, which is described by the police as a knife having a serrated edge. He also had a synthetic rope and ducting tape. The matter of concern that these allegations raise is that in the previous offending of which he was convicted, each of his victims were threatened with a knife, bound and gagged. Now, it is obvious that the knife could be used for that purpose; the ducting tape could be an effective gag; and the rope could be used to bind. 4. Mr Ardasinski, it must be said, was not so impressed by these matters and I acknowledge that. Although he seemed to have a misunderstanding, I think, in respect of some of the previous offending, in as much as his impression was that Mr Wilde improvised means of gagging and binding his victims. I am not so sure that is correct; certainly in respect of the second charge of sexual assault he had the means of binding by some stockings in his pocket which he produced at the scene of the crime. 5. Now, as I have said, the innocent explanation proffered may well be accepted. However, it does seem to me that there is force in the State's argument that the fact that these circumstances arose within five weeks after the electronic monitoring condition was relaxed is not without significance. 6. It is, likewise, not without significance that Mr Wilde continues to profess his innocence in relation to the second and third charges. This means that he has not accepted responsibility for them, is not remorseful for them and his prospects of rehabilitation, to the extent to which that is a relevant, if secondary, consideration, are not strong. 7. I accept that the conditions to which he is subject currently are onerous, and I accept that the onerous nature of them can, in some circumstances, be counterproductive. Dr Ardasinski thinks they could be relaxed somewhat. The conditions, however, do have a degree of flexibility in as much as the day to day application is left to the discretion of experienced Community Corrections Officers. From what Mr Wilde told me today, despite their stringency on paper, they have been relaxed in their application in recent times and I am not satisfied that the effect of me imposing an interim order will be that it will be back to square one and that necessarily they will be brought to bear in their full rigour. 8. In any event, I have made those remarks to essentially deal with the arguments that Mr Wilde has put before me and to acknowledge their relevance. 9. Given the finding I have made as to the satisfaction of both of the section 10A conditions, I am of the view, having regard to the purpose and objects of the Act, that I should make the interim order sought by the State. I propose to impose the conditions sought under section 11. 10. I acknowledge that there is an additional condition which relates to carrying or being equipped with a knife. It seems to me, that is an appropriate condition having regard to the recent circumstances to which I have made reference.

Need for legal representation 1. I have just dealt with a matter under the Crimes (High Risk Offenders) Act (NSW) and made some interim orders. Mr Wilde, who is the defendant, tells me that he has been refused Legal Aid for this matter, a most unusual circumstance, but there may be reasons for it having to do with his relationship with them. But he has been told by Mr Nicolas Kirby of counsel that he would be prepared to appear for him on a pro bono basis if only an instructing solicitor was prepared to accept reference on the same basis. I am empowered under r 7.36 of the Uniform Civil Procedure Rules (NSW), if I am satisfied that it is in the interests of the administration of justice, to refer a litigant to the Registrar for referral to a barrister or solicitor on a pro bono panel for legal assistance. 2. Mr Wilde is on a disability support pension. Given what I have said about Legal Aid, he does not have the capacity to find other legal assistance outside the scheme and he tells me that the Law Society cannot do anything unless they get something in writing from Legal Aid. 3. These proceedings must come on quickly. They are complex and important. They are complex because Mr Wilde has been under an ESO for about eight years. There is a long history to be considered. They are important because of the type of restrictions that the State is seeking to impose upon his liberty so long after he has served his sentence. 4. Given that Mr Kirby apparently is prepared to assist, I think it appropriate that under r 7.36 I refer Mr Wilde to the Registrar for referral to Mr Kirby of counsel, if he confirms he is prepared to accept the referral, and to a solicitor to instruct him solely for the purpose of defending the State's summons under the Act. (Orders otherwise in accordance with short minutes of order.)

Addendum On 11 August 2017 Campbell J amended Order 12 in Chambers: Since making the order for pro bono referral on 10 August 2017 I have been informed by the Prothonotary that Mr Nic Kirby of counsel is not available to accept the referral. Pursuant to my orders the Prothonotary contacted Mr Kirby. He confirmed that he had been approached by Mr Wilde (out of the blue) and had indicated his preparedness in principle to accept a brief on referral from an instructing solicitor. Understandably he was not prepared to appear on a direct access basis. It transpires however that learned counsel is already briefed in a matter which makes him unavailable for the hearing dates fixed by me of 17 and 18 October 2017. I wish to record my thanks for Mr Kirby being prepared to consider accepting the referral. I remain of the view that it is in the interests of the administration of justice that Mr Wilde have representation at the hearing and accordingly I amend order 12 to read as follows: 12. Under UCPR 7.36, Mr Wilde is referred to the Registrar for referral to the Pro Bono Scheme solely for the purpose of defending the State's summons under the Act.

**********

Amendments 15 August 2017 - 15.8.17 Addendum added pursuant to orders made in Chambers by Campbell J 15 August 2017 - Amendment to Addendum to include introduction DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 August 2017