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Supreme Court

New South Wales

Case Name: State of NSW v Guider (No 2)

Medium Neutral Citation: [2019] NSWSC 1145

Hearing Date(s): 20 August 2019

Decision Date: 3 September 2019

Jurisdiction: Common Law

Before: Button J

Decision: (1) An order pursuant to ss 5B and 9(1)(a) of the


Crimes (High Risk Offenders) Act 2006 (NSW) (the Act)
that the Defendant, Michael Guider, be subject to an
extended supervision order from 5 September 2019 for
a period of five years; and

(2) An order pursuant to s 11 of the Act directing the


Defendant to comply with the conditions set out in the
Schedule to this judgment during the duration of the
final order referred to in order 1 above.

Catchwords: HIGH RISK OFFENDER – repeat child sex offender


also convicted of manslaughter – primary application for
one year continuing detention order (CDO), followed by
five year extended supervision order (ESO) –
alternative application for five year ESO – implicit
concession of plaintiff within orders sought –
concomitant concern of futility of CDO except with
regard to incapacitation – consideration of past
offending – consideration of rigour of conditions –
consideration of unanimous expert evidence that the
defendant can be managed in the community –
discussion of adverse aspects of the matter –
defendant’s approach to anti-libidinal medication –
consideration of paramountcy of safety of community
and unacceptable risk test – alternative order of five

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year ESO made

Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited: State of NSW v Guider [2019] NSWSC 646

Category: Principal judgment

Parties: State of NSW (Plaintiff)


Michael Guider (Defendant)

Representation: Counsel:
D Kell SC & J Davidson (Plaintiff)
M Johnston SC & G Lewer (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s): 2019/53538

JUDGMENT
Introduction
1 On 4 June 2019, I determined a preliminary application by the State of New
South Wales (the plaintiff) against Mr Michael Guider (the defendant) pursuant
to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). On that
occasion, I imposed an interim detention order (IDO) of 28 days. That order
has subsequently been extended, including recently by me. It must expire,
pursuant to the Act, on 5 September 2019.

2 Subsequently, on 20 August 2019, a final hearing was conducted before me.


The primary submission of the plaintiff was that the defendant should be
subject to a continuing detention order (CDO) of 12 months, to be followed by
an extended supervision order (ESO) of five years. The ancillary position of the
plaintiff was that the defendant should simply be subject to an ESO of five
years.

3 The position of the defendant was that he did not dispute the appropriateness
of imposing an ESO of five years’ duration, or the conditions proposed by the
plaintiff. His submission was, however, that the statutory test for the imposition
of a CDO as opposed to an ESO had simply not been made out.

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4 At the final hearing, I invited submissions about any aspect of my preliminary


judgment that was said to be erroneous, or ill-considered, or incomplete. No
submissions were made to that effect. The parties were also content for all of
the evidence placed before me at the preliminary hearing to be understood to
be before me at the final hearing as well. In this final judgment, I shall therefore
not repeat all that I wrote at that earlier stage, I assume familiarity on the part
of the reader with that judgment, and all that it recounts by way of background
and submissions previously made by the parties should be understood to be
incorporated by this judgment, except to the extent that it is superseded. I shall
also adopt the same terminology as in my preliminary judgment without further
explanation. The digital version of this judgment, at its conclusion provides a
hyperlink to the earlier judgment.

The real issue


5 As I have recounted above, the dispute between the parties at the final hearing
was in truth circumscribed. There was no dispute that the defendant and his
past offending fulfil all of the non-evaluative preconditions for an order being
made pursuant to the Act: ss 5C(a)-(c), 13B(1), 13B(2)(b) of the Act. Nor was it
disputed by the defendant that the test for making a continuing order of some
kind against him had been established. Nor, at the end of the final hearing, was
there any dispute about the length of an ESO appropriately being five years,
nor about the appropriateness of the conditions sought by the plaintiff. Nor was
it said by the defendant that there is any discretionary reason why I should
decline to impose an ESO upon him.

6 I accept all of those concessions of the defendant. In my opinion, it would be


out of the question for the defendant simply to be released at the conclusion of
his current detention without a great deal of monitoring, supervision, and
support. The whole history of this matter – featuring as it does repeated sexual
assaults against many children; the unlawful homicide of Samantha Knight (the
deceased) during a process of committing the same kind of offence against
her; followed by the continuous incarceration of the defendant for a period well
beyond two decades – cries out for the making of, at the least, an ESO of great
rigour for the maximum period allowed by the Act.

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7 The real question is as stated by the parties: would very significant diminution
of liberty pursuant to such an ESO be sufficient, or has the plaintiff established
that there must be further deprivation of the liberty of the defendant pursuant to
a CDO?

Determination
8 For the following reasons, I have resolved that question in favour of a lengthy
and rigorous ESO. I proceed to state my reasons for that, in no particular order
of importance. In doing so, I incorporate my acceptance or rejection of the
comprehensive and helpful written and oral submissions of both parties.

9 First, the interaction between the defendant and the criminal justice system is
over. Indeed, it came to an end some months ago, on 6 June 2019, when his
total head sentence expired in its entirety. Since that time, he has not been
interacting with the criminal justice system at all, but rather with a civil system
of supervision and detention founded upon assessment of unacceptable risk.
The task in which I am engaged is not explicitly founded on the past (although
the past is undoubtedly relevant); it is an effort to assess the future, and the
risks to which it may give rise: s 5C(d) of the Act.

10 In other words, the exercise in which I am engaged is not about the


appropriateness of further punishment of an offender for what he or she has
done in the past. To repeat: it is a process of assessment of risk with regard to
what he or she may do in the future.

11 Second, contrary to the submission of the plaintiff, I do not accept that a further
period of incarceration for 12 months would serve any rehabilitative purpose.
Whilst no doubt something could be found to be done in that regard, I believe
that rehabilitation in the setting of a gaol has been taken as far as it can be
taken in this case: s 3(2) of the Act. The stark choice with which I am
confronted is highly restricted liberty in the community or simple incapacitation.

12 Third, the primary order sought by the plaintiff itself demonstrates that even the
moving party postulates that the defendant should be released on highly
restricted conditional liberty within a short time from now. To restate that: even
the plaintiff does not contend for a period of further incarceration of more than
12 months, and envisages the defendant being at highly restricted conditional

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liberty thereafter. In my opinion, that implicit concession raises a question of


futility with regard to further incarceration, other than the straightforward
outcome of incapacitation to which I have referred above.

13 Fourth, the defendant has been incarcerated for a continuous period of over 23
years. He has done all that can be done in that setting to further his
rehabilitation with regard to his undoubted sexual attraction to children:
s 17(4)(e) of the Act. The last offence of child sexual assault of which he has
been convicted occurred in early 1996. That is not to say that I am completely
convinced that that attraction has disappeared entirely. But it is to say that I
believe that the passage of years, and the many phases of therapeutic work
that has been done, have an important role to play. In similar vein, the
submission of the plaintiff that the three sets of remarks on sentence that have
been placed before me are unremittingly bleak is undoubtedly correct; on the
other hand, so is the submission of the defendant that the last of them was
delivered almost exactly 17 years ago: s 17(4)(h1) of the Act.

14 Fifth, with regard to the death of the deceased in 1986, the judgment of the
criminal justice system was that it was not accompanied by an intention to
cause death or really serious physical injury, with the result that the defendant
was convicted of manslaughter, not murder. To state that is not to diminish for
a moment the tragedy of the loss of the life of this little girl; nor the abhorrent
circumstances in which it occurred; nor the immense suffering over more than
three decades occasioned by it, and of which Ms Tess Knight spoke so
movingly and with such dignity at the final hearing. Rather, it is simply to
acknowledge the objective reality that the defendant has been convicted of the
lesser form of homicide, as part of the overall assessment of risk called for by
the Act: s 17(4)(h) of the Act.

15 Sixth, the ESO proposed by the plaintiff and to which the defendant consents is
of great rigour. It involves the defendant living at a very structured halfway
house attached to a prison, being subject to electronic monitoring, and more
than 50 other measures that will inevitably be extremely restrictive. To adopt
the words of Ms Howell, forensic psychologist, there will surely be a very
“stable and predictable level of supervision” imposed upon the defendant for

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many years. I also believe that in the circumstances of this case one can surely
expect those who will supervise the defendant to err on the side of great
caution in doing so.

16 In other words, the choice is not between incarceration and a lax form of
conditional liberty; quite the contrary: it is between continuing incarceration and
highly restricted conditional liberty that may be thought of as no more than a
transitional step between gaol and living freely in the community: s 17(4)(d1) of
the Act.

17 Seventh, it is true that each of the experts qualified as part of these


proceedings (and with all of whom the defendant fully cooperated) has
sounded significant notes of caution about the defendant; in the circumstances,
any other approach would be remarkable.

18 For example, amongst the results that Mr Ardasinski (a forensic psychologist


employed by the Department of Corrective Services and highly experienced in
this area) obtained from the battery of risk assessments that he deployed was
the result that the defendant possesses a “High density of criminogenic needs
relative to other male sexual offenders”. Dr Adams, a forensic psychiatrist
distinguished in his field, has spoken generally of a high risk of future sexual
offending, and a moderate risk of future violent offending. Ms Howell, a
similarly experienced forensic psychologist, has emphasised the deviant sexual
interest upon which the defendant has shown himself prepared to act, his
isolation, his institutionalisation, and his abuse of alcohol and prescription
drugs in the past: s 17(4)(d) of the Act. And it is also true, as the plaintiff
emphasised, that the decision is ultimately for me, not them. But having said all
that, it is surely significant that all three experts with different areas of expertise
speak with one voice: to synthesise the varying ways in which they have
expressed themselves, they all believe that it is reasonable to take the view
that the undoubted risk presented by the defendant can be managed in the
community, so long as a very stringent and lengthy regime of supervision and
control is in place: s 17(4)(b) and (c) of the Act.

19 Eighth, it is quite true that good behaviour in a custodial setting is hardly a


guarantee of avoidance of serious offending once released. But I adopt the

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opinion of the experts that, overall, the signs so far have been as positive as
they can be: the defendant has been a compliant and cooperative prisoner in a
setting that has no doubt been very physically dangerous for him; he has (as I
have said) pursued rehabilitation over an extended period; he has worked
outside the prison for a time, albeit whilst under supervision; he has been
subjected to electronic monitoring for years already; and, finally, he has had
the benefit of escorted day leave on many occasions without incident:
s 17(4)(e2) and 17(4)(i) of the Act.

20 Ninth, there are, as the plaintiff submitted, undoubtedly adverse aspects of the
matter, as follows.

21 The first is the ambiguous approach of the defendant to his responsibility for
the death of the deceased. In fact, I think that he may have been ambivalent
about that question since the time when he entered a plea to manslaughter in
satisfaction of the murder count, many years ago. It is true to say, I think, that
the moral ramifications of what he has done in that regard have not been fully
embraced by the defendant. That may be because of an inability or refusal to
face up to its enormity; or a sense of shame; or a process of psychological
disassociation; or a view that further discussion of the topic inevitably redounds
to the detriment of the defendant; or some other reason. And I see the force in
the submission of the plaintiff that that ambivalence may intensify the risk that
the defendant poses if released. Having said that, my specific role in these
proceedings is not to assess the moral blameworthiness of the positions
adopted by the defendant. As I have written, it is simply to assess risk into the
future. And the simple fact is that the defendant publicly and formally admitted
his guilt with regard to the death of the deceased over 17 years ago, and
thereby exposed himself to inevitable further lengthy incarceration as a result.

22 In similar vein, it is quite true that the body of the deceased has never been
able to be found. I know from experience in other matters that the denial of a
decent burial to family members of a homicide victim is exceptionally painful.
Having said that, for many years it has been posited that the defendant simply
may not be able to say (for whatever reason) where the body of the deceased

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is to be found, and I believe that, 33 years later, the correctness of that


proposition is a reasonable possibility.

23 Finally on this point, it is to be recalled that both Ms Howell and Dr Adams,


forensic psychologist and psychiatrist, were aware of the ambivalence of the
defendant about this whole topic. Each of them was concerned about it, but
neither of them withdrew his or her opinion about the reasonable
appropriateness of management in the community: s 17(4)(c) of the Act.

24 Another adverse factor is my lack of acceptance of the proposition that the


defendant has never thought of children in a sexual way in the more than two
decades during which he has been incarcerated. But I think it naive to have
expected this man simply to have put that sexual attraction to one side instantly
upon entering prison. As Ms Howell has explained, and as a matter of
commonsense and experience of the world as the tribunal of fact, I think that I
can regard sexual interest as “enduring”, not something that can be turned on
and off at will. And as Dr Adams has opined, I think the most realistic optimistic
thesis about the sexual drive of the defendant is a gradual reduction in such an
attraction over the course of many years, as part of an ageing process, and as
a result of sincere engagement in therapy. And that is precisely why the
defendant has been called upon to engage in significant rehabilitation during
that time, and will be called upon to do the same if released to an ESO.

25 Relatedly, I agree it is a matter of some concern that, whilst in custody, the


defendant drew pictures of children. But I think the point is soundly made on
his behalf that that was one incident, it was seven years ago, and those
drawings were created in the context of drawings of others, including adult
women. It is also noteworthy that they do not seem to have been secreted, but
rather displayed on the wall of his cell. In short, I do not believe that the fact
that the defendant drew images of two children almost 100 months ago plays a
significant role in determining whether to permit him to be at highly restricted
conditional liberty or further incapacitated by incarceration. To adopt the
approach of Dr Adams, I regard the finding of those items as “inconclusive”.

26 Tenth, as to the details of how the defendant would be managed on an ESO, it


is true that the picture with regard to the use of anti-libidinal medication is not

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clear. But that is because it has not been fully investigated medically at this
stage (I make no criticism of that, bearing in mind that any release of the
defendant has been contingent upon the conclusion of these proceedings).
And it is also the case that anti-libidinal medication is obviously by no means
the complete answer with regard to persons who may commit sexual offences
for complex reasons that go well beyond simple sexual gratification. Still and
all, it is important that the defendant has expressed his readiness to take such
medication, so long as it is physically safe for him to do so: s 17(4)(e1) of the
Act.

27 Eleventh and speaking more generally, of course there is a risk in releasing the
defendant, even if subject to a very stringent ESO, as he will be. And I
appreciate that the consequences of the commission of offences of child
sexual assault are very often devastating, as the articulate and insightful
statements of Ms Lisa Giles and another, anonymous victim amply
demonstrated at the final hearing: s 21A(4) of the Act. But the fact is that there
is some risk in releasing any person on the complete expiry of his or her
sentence who has been shown to commit offences of the utmost gravity in the
past, whatever their particular nature. Despite the undoubted paramountcy of
the safety of the community (s 17(2) of the Act), the statute calls upon me to
reflect specifically upon whether or not the plaintiff has established an
unacceptable risk that could only be forestalled by further incarceration, not
any risk: s 5C(d) of the Act. And it is incumbent upon the plaintiff to establish
that proposition to a high degree of probability: s 5C(d) of the Act. It is that
normative judgment with which I am asked to engage, not some process
whereby any person who presents any risk is to be indefinitely detained.

28 Twelfth, it is true that my finding today is different from the finding that I made
some months ago. But as I remarked at the final hearing, my earlier finding
pertained to detention for a period of one month, not one year; it was
contingent and predictive, whereas this judgment is determinative; and it was
not informed by the subsequently available opinions of a highly experienced
forensic psychiatrist and forensic psychologist.

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29 Thirteenth and finally, to adopt the metaphor of senior counsel for the
defendant, I believe that there is a nettle to be grasped in these proceedings. I
say that not only because the criminal justice system has not seen fit to impose
a sentence of life imprisonment upon the defendant. I also say it because, as
the originating process in these proceedings shows, even the plaintiff
envisages that his release will occur within a period of 12 months. And I further
say it because I do not believe that the plaintiff has established the necessity of
an order effecting incapacitation, in light of the length and rigour of the
alternative order. On the evidence placed before me, and applying the test set
out in the Act, I believe that it is my judicial responsibility to grasp the nettle
now.

Orders
30 I make the following orders:

(1) An order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk


Offenders) Act 2006 (NSW) (the Act) that the Defendant, Michael
Guider, be subject to an extended supervision order from 5 September
2019 for a period of five years; and
(2) An order pursuant to s 11 of the Act directing the Defendant to comply
with the conditions set out in the Schedule to this judgment during the
duration of the final order referred to in order 1 above.
Guider Conditions (Final Hearing) - 20 Aug 2019 (389 KB,
pdf)http://www.caselaw.nsw.gov.au/asset/5d6dc206e4b0c3247d71189c.pdf

State of NSW v Guider judgment (119 KB,


pdf)http://www.caselaw.nsw.gov.au/asset/5d6dc225e4b0c3247d71189f.pdf

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Amendments
03 September 2019 - Need to change the two attachments to pdf format.

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