Continuing Detention Orders in New South Wales

An application has been made to extend the prison sentence of a convicted killer and child sex offender beyond the expiry of his full term of imprisonment.

69-year old former babysitter and gardener Michael Anthony Guider was sentenced to two lengthy prison terms in 1996 and 2000 for sexually assaulting more than a dozen girls aged between two and 16 from 1980 to 1996.

In 2002, he pleaded guilty to the manslaughter of nine-year old Samantha Knight, who disappeared from Bondi in August 1986.

He was sentenced to a full term of 17 years in prison, with a non-parole period of 12 years. He applied for parole after the expiry of his non-parole period in 2014, but was refused.

His full term expires on 6 June 2019.

Application for continuing detention order

The State of NSW has applied for Mr Guider to remain behind bars for a further 12 months and for an extended supervision order of five years when he is released, the latter comprising 56 strict conditions including a curfew, a ban on viewing pornographic material, a requirement that he participate in a drug and alcohol treatment program and that he be assessed for “anti-libidinal medication”, which is said to limit a person’s sex drive.

A barrister for the State of NSW submitted to the Supreme Court that Mr Guider “has no remorse and lacks insight” into his offending, and “remains a serious danger to the community”.

The barrister described Guider as a person who “grooms” the parents of pre-pubescent children, submitting there is a “real and unacceptable risk” he will pray on children if released into the community.

Mr Guider’s lawyers opposed the application for continuing detention, submitting that their client had been a “model” prisoner” who received just one warning in his 23 years behind bars, which was for feeding birds, and that he could be “suitably managed” in the community.

The lawyers pointed out that Guider had taken part in day release 20 times between June 2016 and February 2019, participated in three sex offender treatment programs, completed a university degree, and undertaken drug and alcohol interventions as well as an anger management course.

Supreme Court Justice Richard Button indicated he would decide the application before Mr Guider’s scheduled date of release.

Continuing detention orders in New South Wales

The Crimes (Serious Sex Offenders) Act 2006 (the Act) contains mechanisms by which the State of NSW can apply to continue the incarceration of certain persons beyond their full term of imprisonment, and also to extend their period of supervision in the community.

Section 14 of the Act permits the State to apply to the Supreme Court for a continuing detention order against a sex offender who, when the application is made, is in custody in a correctional centre:

1. while serving a sentence of imprisonment by way of full-time detention:

(i)  for a serious sex offence, or

(ii)  for an offence of a sexual nature, or

(iii)  for another offence which is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to above, or

2. pursuant to an existing continuing detention order.

Section 5 of the Act defines ‘serious sex offence’ to cover a broad range of offences of a sexual nature, including those carrying a maximum penalty of at least 7 year in prison, such as:

• sexual act with a child under 10,
• aggravated sexual touching,
• all sexual assaults,
• persistent sexual abuse of a child,
• procuring or grooming a child under 16,
• sexual servitude, and
• producing, disseminating or possessing child abuse material.

Section 17 of the Act empowers the court to make a continuing detention order “if and only if… 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 and that adequate supervision will not be provided by an extended supervision order.”

Section 18 provides that a continuing detention order commences when it is made, or when the offender is release, whichever is the latter, and continues for the time specified in the order but cannot exceed give years.

The section provides that further applications can be made for such orders at any time, meaning that technically, an offender can be kept behind bars until they die regardless of the penalty imposed by the original sentencing court.

Extended supervision orders in New South Wales

Section 6 of the Act empowers the State to 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:

1. while serving a sentence of imprisonment:

(i)  for a serious sex offence, or

(ii)  for an offence of a sexual nature, or

(iii)  for another offence which is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to above whether the sentence is being served by way of full-time detention, intensive correction in the community or home detention and whether the offender is in custody or on release on parole, or

2. pursuant to an existing extended supervision order or continuing detention order.

An application cannot be made earlier than six months before the expiry of an offender’s sentence.

Section 9 of the Act stipulates that “[A]n 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”.

Section 10 provides that an extended supervision order commences when it is made, or when the offender is release, whichever is the latter, and continues for the time specified in the order but cannot exceed give years.

The section states that further applications can be made for such orders within 6 months of the expiry of an existing order.

Section 11 outlines that the conditions of an extended supervision order can include, but are not limited to, directions requiring the offender to:

(a)  permit any corrective services officer to visit the offender at the offender’s residential address at any time and, for that purpose, to enter the premises at that address, or

(a1)  permit any corrective services officer to access any computer or related equipment that is at the offender’s residential address or in the possession of the offender, or

(b)  make periodic reports to a corrective services officer, or

(c)  notify a corrective services officer of any change in his or her address, or

(d)  participate in treatment and rehabilitation programs, or

(e)  wear electronic monitoring equipment, or

(e1)  reside at an address approved by the Commissioner of Corrective Services, or

(f)  not reside in or resort to specified locations or classes of locations, or

(g)  not associate or make contact with specified persons or classes of persons, or

(h)  not engage in specified conduct or classes of conduct, or

(i)  not engage in specified employment or classes of employment, or

(j)  not change his or her name.

Criticism by the Bar Association

The NSW Bar Association has released a paper in which it “maintains its strong opposition” to the Act, labelling it as “deeply flawed” and saying that it “unacceptably interferes with fundamental human rights and freedoms”.

While “recognis[ing] that the safety and protection of the community can warrant a statutory system of preventive restraint who gave been convicted of violent crimes and who represent a grave threat to the community if released”, the Association makes clear that it opposes the current regime on the basis that it:

“effectively allows indeterminate prison sentences (subject only to the need for a new application for a continuing detention order to be made by the Attorney General every 5 years (s 18(1)(b)), and the requirement that the Commissioner of Corrective Services provide the Attorney General with a report on the offender at intervals of not more than 12 months (s 19(2)) departs dramatically from minimum international standards relating to human rights in the administration of justice. “

It states that:

“A system of preventive detention which conforms to international human rights standards must be based on periodic orders for continuing detention in an institution which seeks to facilitate the rehabilitation of offenders and provides procedures for regular and thorough review by psychiatric and other experts.”

The Association goes through a number of provisions of international law instruments which Australia has ratified, arguing that the Act undermines procedural fairness and constitutes a regime of “unfettered power… [that] permits manifest arbitrariness… [which] does not properly permit… appellate review.