Retired Supreme Court judge John Sulan criticised by Director of Public Prosecutions Adam Kimber over Gavin Schuster release order

PROSECUTORS say a retired judge made significant errors when ordering the release of serial sex predator Gavin Shaun Schuster — but a court has questioned whether they did enough to stop him.

Gavin Shaun Schuster. Art: Tim Ide.

• Court orders release of uncontrollable sex predator
• Local MP says Kilburn must not be paedophile dumping ground
• Parole Board calls for 35 strict conditions on predator’s release
• “Unreasonable, unjust”: DPP challenges predator’s release

PROSECUTORS say a retired judge made significant errors when ordering the release of serial sex predator Gavin Shaun Schuster — but a court has questioned whether they did enough to stop him.

The conduct of both former Justice John Sulan and the Office of the Director of Public Prosecutions came under scrutiny in the Court of Criminal Appeal on Wednesday.

Director of Public Prosecutions Adam Kimber, SC, said Justice Sulan had made four errors — and failed to follow state law — when he ordered Schuster be released into the community on licence.

He said the former judge had “got off on completely the wrong foot” with the legislation.

Mr Kimber said that Justice Sulan had “at no point made a proper assessment” of Schuster’s unwillingness to control his sexual instincts, and the risk he therefore posed.

That prompted Chief Justice Chris Kouakis and Justice Malcolm Blue to ask whether prosecutors had placed sufficient medical evidence before Justice Sulan.

Mr Kimber said that was not the issue, as legislation “mandated” judges inform themselves before making any release orders.

“This was His Honour’s obligation, under the law, to order the necessary reports and to give their opinions consideration,” he said.

“It doesn’t matter what someone does or does not do from the bar table.”

Chief Justice Kourakis disagreed, saying “the ordinary rules of the court” still had to be followed regardless of legislative requirements.

Schuster, 40, has offended against both boys and girls since the age of 12, driven by his “frustrations” with daily life.

He has been in prison since 2000, save for a short period in 2008 when he was released and immediately reoffended.

Doctors insist he must be released now to avoid institutionalisation, with retired Justice Sulan conceding Schuster would “always” be a risk but “nothing is perfect in this world”.

Despite outrage from Kilburn residents and a plea from Federal MP Kate Ellis, Attorney-General John Rau declined to intervene in the case, saying it would be handled by the DPP.

In his grounds of appeal, Mr Kimber said former Justice Sulan placed “unreasonable” and “plainly unjust” emphasis on Schuster’s rehabilitation.

He said insufficient weight was placed upon a jailhouse conversation in which Schuster told a fellow inmate he intended to reoffend upon release.

Schuster also discussed, with that inmate, suburbs in which it would be “easiest” to commit an offence undetected.

On Wednesday, Chief Justice Kourakis questioned whether the court had jurisdiction to hear a challenge to Schuster’s release — Mr Kimber insisted it did.

Chief Justice Kourakis agreed an order for Schuster’s release had been made in 2013, then permanently delayed because suitable accommodation could not be found for him.

Mr Kimber said Justice Sulan had cancelled that order before making his own, and it was that second order against which the DPP’s challenge had been filed.

Andrew English, for Schuster, said that chain of events raised questions of its own and foreshadowed a possible cross-appeal on his client’s behalf.

Chief Justice Kourakis granted Mr English time to file such an application, and ordered the hearing continue.

Mr Kimber said the Kilburn facility at which Schuster was to be housed did not lock its gates during the day.

He said it was surrounded by fences “not high enough” to deter someone from climbing.

Police, he said, would take between 10 and 30 minutes to respond if Schuster left the premises without permission.

“He does not groom, he is an impulsive offender and that is particularly dangerous,” he said.

“He could, effectively, be walking to a park or going to the shops with a volunteer (supervisor) and just decide to offend.”

Mr Kimber said Schuster had admitted becoming aroused by images of girls on television, warning the mere sight of a child near the facility might spark danger.

He said Schuster had repeatedly lied to his doctors — a point Chief Justice Kourakis agreed was concerning.

“It’s just a bit surprising to me, given the experience of the courts, that any psychologist with any experience into people with these tendencies would adopt, as a working premise, that (offenders) would be truthful about these things,” he said.

“They may be, but there’s such a high danger and risk for them not to be.

“I would think that healthy scepticism should accompany every assessment.”

Mr English said Justice Sulan had been “roundly criticised”, but insisted Schuster was “far more likely to be compliant” than he was to present a risk.

“Schuster has never posed any real difficulty within the prison system, he does what he’s told to do and has been taking anti-libidinal medication for years now,” he said.

“I guess there’s always a risk that he may suddenly be overcome with arousal, run off and attack a child.

“But of course the courts and community have constantly accepted there will always be some risk, and people should only be locked up for the term of their natural lives if they really have to be.”

The hearing continues on Thursday.

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