ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v CORNWALL [2007] NSWSC 1082 | Case summary

ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v CORNWALL [2007] NSWSC 1082 | Case summary | Zoe

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Treatment programs 18 According to Mr Rendell's abovementioned report, departmental records indicate that the defendant was counselled from 11 September 2001 to 15 November 2001 to attend Offence Specific Programs (Sex Offender Treatment Programs) to address his offending behaviour on eight occasions between those dates. Mr Rendell reported that records indicated that on multiple occasions the defendant was made aware that his non-participation would adversely impact on his parole consideration. 19 On 2 June 2003, he is recorded as having declined to participate in an interview with a psychologist, Victoria Bel, in respect of his then impending parole. Mr Rendell recorded (p.4 of his report) that the defendant confirmed this, stating "It was too late" then to participate in the CUBIT program. According to departmental documentation, the defendant was referred to the CUBIT 10 month High-Intensity Program on 31 January 2001. On a subsequent date while in Kirkconnell Correctional Centre, a further offer was made by psychologist S. Frost in late 2006 but was rejected by the defendant. 20 The defendant has, however, participated in some programs. Mr Rendell's report confirms that he participated in two Sex Offender Psycho-Education (SOPE) courses while in Berrima between 1997 and 2000 delivered by staff from DCS Sex Offender Programs. He is recorded as saying he did so as he thought that SOPE was what the sentencing judge (his Honour Judge Viney, DCJ) had referred to in his remarks on sentence in 1993 (see below). Mr Rendell quotes from the following statement contained in a pre-sentence report by psychologist W. John Taylor dated 26 November 1993:- "… it is clear Mr Cornwall is in quite a desperate need of intensive psychiatric treatment. This treatment needs to include therapy for his long-standing sexual pathology, that this needs to be seen within the context of his severe personality disorder (schizoid and avoidant personality adjustment). His future potential for recidivism would appear to depend to a great extent on the outcome of such psychiatric intervention …" 21 I will refer to this report and that of Dr Koller, consultant psychiatrist, below.

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• Sexual self-regulation. 27 Mr Rendell assessed the defendant as being in the high risk category of sexual offending in the same terms to which I have referred above. He stated (at p.14):- "… the management of an individual's risk involves enhancing their level of functioning in the 'dynamic risk' domains discussed above. Through working on identified deficits in these areas, a sex offender becomes more insightful and skilled at monitoring and managing his 'live' risks, increasing his ability to positively respond to risk challenges, thereby enhancing his general capability to regulate his potential offending pattern. At this point, Mr Cornwall lacks the necessary awareness of his cognitive, emotional and behavioural offending sequale (sic). As a result, he has limited management strategies and skills to respond and protect him in situations of risk." 28 Mr Rendell, who impressed me as both experienced and capable, concluded that by reason of the defendant had not previously been an adult supervised in the community, this renders a prediction difficult exercise. He stated that, given his assessed high level risk/needs, he considered that it was essential that the defendant enter a treatment program which is specific to his sex offending behaviour. 29 He also stated that the defendant's risk may be managed or reduced if he were to complete a suitable treatment program so as to allow him to identify the risk factors associated with his sexual offending behaviour, formulate meaningful and effective management strategies and allow for the practice of the strategies. He went on to state that in custody CUBIT offers a treatment program appropriate to his high risk/needs. 30 He observed that in the defendant's favour, the defendant had expressed a desire to enter treatment, and based on his custodial performance and the assessment process, he presented as amenable and compliant. 31 However, he expressed doubts upon the defendant's post-release plans, given the assessment by Community Offender Services as the proposed accommodation adjoined a childcare/preschool. Reservations had also been expressed by the Probation and Parole Officer who had conducted the pre-release home visit in respect of the proposed accommodation providers. One particular difficulty referred to was the fact that the suggested providers did not appear to have knowledge of the nature of the offences that had been committed by the defendant. Mr Rendell observed that, at present, there was no appropriate community treatment program to the defendant's risks and needs.

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(b) A continuing detention order, for which provision is made in Part 3. 39 An application for a continuing detention order may only be made in respect of a "sex offender" who, at the time application is made, is in custody in a correctional centre for a "serious sex offence" or an "offence of a sexual nature" (s.14(1)). A "sex offender" is defined in s.4 of the Act to mean "a person who has at any time been sentenced to imprisonment following his or her conviction of a serious sex offence, other than an offence committed while the person was a child". 40 The term "serious sex offence" is defined in s.5(1) of the Act to include, relevant for the present purposes:- "(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 seven years or more, and (ii) in the case of an offence against an adult, the offence is committed in circumstances of aggravation (within the meaning of the provision under which the offence arises)." 41 In determining whether the test under s.17(2) or s.17(3) is made out, the Court "must" have regard to the matters listed in s.17(4) of the Act. Although the Court must consider the factors that are specifically listed, the list is not exhaustive, and the Court can have regard to "any other matter it considers relevant". 42 Part 3 - Continuing Detention Orders, s.17 provides as follows:- "17. Determination of application for continuing detention order (1) The Supreme Court may determine an application for a continuing detention order:- (a) by making an extended supervision order, or (b) by making a continuing detention order, or (c) 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 is likely to commit a further serious sex offence if he or she is not kept under supervision. (3) A continuing detention order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further 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. (4) In determining whether or not to make a continuing detention order or 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 psychiatrists appointed under s.15(4) to conduct psychiatric examinations of the offender, and the level of the offender's participation in any such examination,

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• Limited interpersonal and social functioning. 49 The second of the abovementioned factors (alcohol abuse) has been commented upon above. The history does not, as earlier indicated, suggest a strong or significant correlation between the index offences and alcohol abuse. 50 The suggested approach to supervision and treatment of the plaintiff is remarkably uniform in the analyses to be found in the psychiatrists' reports. There is an emphasis, in particular, in the reports of Drs. Allnutt and Dr O'Dea on the need for both medical (psychiatric) treatment as well as for psychological therapy in terms of treatment programs. It is clear that unless both forms of treatment or therapy are properly administered with the defendant co-operating, the risk in question is unlikely to be minimised. I note in the remarks on sentence of Viney DCJ given on 6 December 1993 that his Honour also saw the need for psychiatric treatment as essential in the offender's rehabilitation. His Honour, in that respect, stated (p.19):- "… in determining what that period should be, I have to take into account the prospects of his conduct, that is, is propensity, being contained, hopefully curtailed permanently. Such curtailment, that is, really, his being reformed, depends upon the resources within the prison system to provide adequate psychiatric treatment during the period of his incarceration. Whether such treatment can effect such a change is uncertain and has to be uncertain because it depends, not only on the availability of sufficient treatment, but also the commitment of the prisoner to co-operate with those opportunities. On the evidence of the reports of Mr Taylor and Dr Koller, the prognosis at this stage must be guarded." 51 Dr O'Dea, in his report, in terms of future management, observed (p.9):- "Mr Cornwall should take the opportunity to explore in more detail with a suitably qualified and experience (sic) forensic psychiatrist (and forensic psychologist, as appropriate), his sexuality in general and his sexual offending behaviour in particular, in order to endeavour to gain a better understanding of specific measures required to help him to manage and minimise his risk of engaging in future sex offending behaviours in the long term. Specific treatment of his paraphilias, including specific treatment of his history of Exhibitionism and Voyeurism, should involve specific Cognitive Behavioural Therapy (CBT) interventions and specific consideration of medication, including selective serotonin re-uptake medication (SSRI), anti-depressant medication and testosterone lowering medication." 52 Dr Allnutt also made it clear that the defendant requires both specialist medical and assistance from specialised psychologists. He stated, in this respect (p.17):- "… the Community Forensic Mental Health Service, under Justice Health, could assist the Forensic Psychology Services and in conjunction with them provide psychiatric oversight and supervision of medication and/or sex drive suppressant medication, should he consent." 53 The analysis, in particular, that of Dr Allnutt, leads strongly to the conclusion that the defendant requires psychiatric treatment to deal with the underlying personality disorder. If he is to remain in custody, the he considered the support and assistance from program such as CUBIT would be indicated. The latter alone plainly will not be sufficient to address the needs and requirements for the defendant's rehabilitation. That much was clear from the evidence of the psychologist, Mr Taylor before the sentencing judge in 1993 and it was clear to the sentencing judge, whose remarks I have extracted above. It has, as I have stated, been reinforced recently by Drs Allnutt, O'Dea and Nielssen. 54 Regrettably, the defendant has not been seen by a psychiatrist for assessment until July 2007. He has not received treatment as recommended by Mr Taylor.

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55 Dr Allnutt, in identifying the underlying psychiatric dynamics, has pointed to the need for an integrated treatment program involving both medical intervention and supervision as well as programs directed to cognitive behavioural issues. In his report, he stated (at p.13):- "Mr Cornwall manifests a limited understanding of the motivations and triggers that preceded his offending, although he was able to provide me with a description of his circumstances. He, to a degree, does understand that it is driven by, some form of sexual difficulty. I did not gain the impression that he had an adequate understanding of the antecedence (sic) [antecedents] to his sexual offending. He presented as an individual who had a limited repertoire of coping when it came to dealing with stress. Much of his offending appeared to have occurred in the context of a dysphoric mood, feelings of personal despondency and social isolation; of concern, his offending behaviour appears to have been an attempt to deal with these feelings. I do not believe, at this stage, he has developed adequate mechanisms of coping with dysphoric moods in a more constructive manner, although he does appreciate that sexual offending is an inappropriate way of dealing with it." 56 The history obtained by the psychiatrists indicates that the relevant serious sexual offences were of late onset, having occurred when the defendant was aged 36 to 38. The personality disorder which Mr Taylor originally diagnosed is against a history that the defendant had worked since the age of 14, but that he last worked in 1991 and that from that time "… he locked himself in his room and became withdrawn" (Dr Allnutt's report, p.8). 57 The history obtained by Dr O'Dea confirmed that, before the serious sex offences in 1991-1993, the defendant had a marked period of social retreat or isolation which, on the evidence, was associated with the dysphoric mood referred to by Dr. Allnutt. Dr O'Dea recorded in his report (p.7):- "Mr Cornwall told me he had no formal psychiatric contact prior to his arrest and detention in custody. However, he told me that in the three years leading up to his arrest and detention in custody, he became increasingly depressed and at time suicidal. He told me that after the second set of offences, he had put rat poison in a cup of coffee but did not drink it 'I didn't like what I had done'. He told me that he did not talk to anyone about this incident or about his offending behaviour at the time …" 58 I accept the opinions expressed by Dr Allnutt and of Dr O'Dea and Dr Nielssen. It is clear that on their analyses, the defendant has required medical treatment for his personality disorder for many years. He requires ongoing psychiatric treatment and periodic assessment for his personality disorder. Future treatment may require the use of anti-libidinal medication amongst other treatment modalities.

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• Treatment 66 The strong submission made on behalf of the defendant was that the Court should make an extended supervision order and not a continuing detention order. In that respect, reliance was placed, particularly, upon the recommendations set out in Dr Allnutt's report at pp.17-19 and upon the additional evidence concerning the development of a management plan which, it is said, would give effect to the recommendations set out in Dr Allnutt's report and to the evidence of Dr Ellis. 67 In considering the submission and the evidence relevant to the making of an extended supervision order, it is necessary that particular regard be had to the matters referred to in s.9(3), s.17(3) and (4) of the Act. Adjournment of the proceedings: additional medical and other evidence 68 There was also tendered in the plaintiff's case a letter dated 4 September 2007 from Mr Ware, Statewide Clinical Co-ordinator, Sex Offender Programs. 69 On 28 August 2007, the proceedings were adjourned. On that date, Mr Dalton SC, on behalf of the applicant, stated:- "The primary purpose of the adjournment was to initiate a full assessment by both Ms Howell and Dr Ellis, [to] permit them to commence treatment and then have a report prepared for the next occasion." 70 It was accordingly envisaged on the latter date that further medical evidence would be produced in the proceedings, in particular, in relation to future medical (psychiatric) treatment proposed and for a further report to be obtained from Ms Howell. 71 On 28 August 2007, the proceedings were adjourned on the application of the defendant. The purpose of the adjournment was to permit the evaluation of the proposed risk management plan and to obtain additional medical (psychiatric) evidence in relation to future psychiatric and psychological treatment directed to reducing and controlling the risk of relapse and re-offending by the defendant. 72 On 24 September 2007, the hearing of the proceedings resumed. On that date, Dr Allnutt's report 19 September 2007 was tendered and admitted (Exhibit C). A copy of the report of Dr O'Dea dated 20 September 2007 was tendered and admitted (Exhibit D) as well as a letter from Mr Jayson Ware dated 4 September 2007 (Exhibit E). In addition, a copy of the report of Dr Ellis dated 19 September 2007 was tendered and admitted into evidence (Exhibit 5) as well as a copy of the report of Ms Jenny Howell dated 21 September 2007 (Exhibit 6). 73 On 24 September 2007, Ms Vivian Fahs, Co-ordinator of the Special Visitation Group with the Department of Corrective Services gave evidence in relation to proposals for the plaintiff to work and reside in the community, should he be released. Ms Fah's evidence details the provision made for monitoring, liaising with the defendant's family and particular provision made concerning living arrangements and movements of the defendant in the event that an extended supervision order was made.

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74 In relation to the alteration to the proposed supervision plan whereby the defendant would see Ms Howell once a week, rather than twice a week, Ms Fahs stated that she was happy with that arrangement and believed that the defendant was quite motivated in regard to treatment. Ms Fahs added that, nonetheless, she maintained that the best route to follow in terms of treatment was for the defendant to undertake the CUBIT program. In the event that that was not to be, then she considered the plan to be "adequate" adding:- "What we don't know is how long, you know, the treatment will go for or what it will actually contain and so forth but that is for Ms Howell." 75 Ms Fahs, in the course of giving evidence, was cross-examined in relation to the proposed risk management plan. Provision was made for Ms Howell to consult with the Sex Offenders Program on a regular basis. It was put to her in cross-examination:- "Q. Once again, you are satisfied as to the adequacy of the treatment management program envisaging one treatment with Ms Howell a week to commence with and another consultation with Dr Ellis on a weekly basis? A. I do also believe in that meeting that Dr Ellis said in the short term he could provide some adjunct psychotherapy or something along those lines if there is a shortfall or something required that Ms Howell can't actually do then between us we could discuss that and, you know, Dr Ellis could pick up the shortfall …" 76 Mr Rendell was recalled to give evidence on 24 September 2007. He was asked as to whether he adhered to the view that he had expressed in May 2007 that the defendant should undertake the CUBIT program. He responded:- "It was my view and is my view that that would be the optimal, but as I said, I think the last time I appeared here it was as much to assist Mr Cornwall to gain as much from his life in the future as it was - you know, I mean, I think, as I have stated, the plan currently with him being treated by Ms Howell is adequate. It would be optimal but, you know, that is still my view." 77 He later added in relation to the CUBIT program option:- "… I do still see it as the preferred option. However, when I assessed Mr Cornwall in April, prior to writing the report I was of the view then that he could have done treatment in the community as well. It just was not my preferred option, that is all …" 78 Mr Rendell added in re-examination in relation to the reasons why he favoured CUBIT:- "I know that might sound a bit trite, but, yes, he would have a better life and that is part of the theoretical foundations of the model we work with now so, as I said earlier, I think last time, unhappy people commit offences, happy people don't, so we have finally worked out that if we can give people a full and satisfying contributing life they are less likely to commit offences …" 79 Dr Ellis' report, Exhibit 5, confirms two fundamental matters:-

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(c) The issue as to whether the defendant should undertake the CUBIT program in custody. 86 Whilst the defendant does have the benefit of the support of his two relatives (emotionally, financially and in terms of provision of a job in their business and accommodation) the question remains as to whether or not such support along with the proposed management plan will sufficiently contain the defendant's assessed risk of re-offending. 87 I observe at this point that the benefit of participation in a job training program is that it would provide the defendant with the opportunity of developing interpersonal relationships which would assist him both in dealing with the personality deficits to which I have referred and also to prepare him to take his place in society. There is, in other words, a limit to the benefits that can be produced by treating doctors and therapists and it seems there is a need to supplement such specialist support with appropriate job skill training and employment opportunities. 88 In the course of his evidence, Dr Ellis explained that anti-depressant medication can be used for a variety of psychiatric disorders and that "… they have a positive effect in a number of domains of personality functions, so that is a secondary consideration in prescribing this particular medication in Mr Cornwall's case". 89 In this evidence in chief, he was asked:- "Q. Now, with relation to that medication, you do not consider there has been sufficient time to assess Mr Cornwall's response to the medication? A. No. He hasn't been on it long enough yet for me to make a comment as to whether this particular medication will be effective in his particular case." 90 Dr Ellis confirmed that Mr Cornwall had indicated that he would fully co-operate with the proposed treatment arrangements. 91 He stated that the defendant had not expressed any negative attitudes towards treatment or supervision. He was then asked:- "Q. You considered that there was no requirement that he be hospitalised or detained in custody to participate further in treatment or assess further progress? A. That's correct." 92 This question was put in relation to observations made by Dr Ellis in his report of 19 September 2007 wherein, at pp.5-6, he stated:- "He indicates that he will co-operate fully with the proposed treatment arrangements. He is not expressing any negative attitudes to treatment or supervision. While he reports no current paraphilic fantasy or abnormal sex drive, this is not uncommon in a prison setting. There is no requirement that he be hospitalised or detained in custody to participate further in treatment, or assess further progress. Any assessment of progress would be enhanced by his response to treatment in a community environment when this becomes available to him." 93 In terms of proposed future treatment, Dr Ellis added in his report:- "Should Mr Cornwall be remanded to further custody, treatment by myself will continue if he is continued to be housed in Long Bay. The Community Forensic Mental Health Service provides psychiatric treatment to prisoners housed in the Long Bay MSP area. He would be referred to the relevant Justice Health Clinic psychiatrist if he were removed to another prison. I would not commence cyproterone acetate until three months prior to his expected release, as the potential side effects from this medication are not generally warranted while a person is in custody and not reporting or behaving in a manner consistent with paraphilia. His response to sertraline would be assessed on an ongoing basis." 94 Dr Ellis then went on to deal with the position if the defendant was released to custody under an extended supervision order. In that case, he considered the proposed risk management plan would be delivered by the Community Forensic Mental Health Service with himself as delegated Forensic Psychiatrist. He added "medication would be adjusted according to clinical response and need …". 95 Dr Ellis was also asked about the "multi-disciplinary" approach involving Forensic Psychological Services and Ms Howell and was asked:- "Q. You consider all these arrangements to be appropriate and adequate for the proper management of Mr Cornwall's risk, should he be released into the community? A. Yes. I think this is an appropriate treatment regime for him, yes." 96 He went on to explain the reason for having prescribed anti-depressant medication for the defendant in these terms:- "… anti-depressant medications have a spectrum of effects, and one of those spectra is on sexual thoughts and sexual drive; another is on facets of anxiety and personality function, which is the clinical indication for which I have prescribed it in this circumstance. I note that he has had a history of major depression in the past. Some people might say that it would be indicative to prescribe an anti-depressant to prevent a relapse of a depressive order, but I haven't done that in this case." 97 He was then asked:- "Q. Just following on from a number of questions the judge asked. Would a by-product of taking the sertraline counteract any relapse into depression? A. It is difficult to say whether it would. It may do. There is limited scientific data to say - and people who have had a depressive episode many years ago, whether taking an anti-depressant 10, 15 years down the track, might prevent a further relapse, it may do - but I think that would be better at identifying and preventing a relapse is regular review by psychiatrists, psychologists …" 98 Dr Ellis stated that it was his objective to establish the defendant on the medication first "… so I can assess its contribution and then add that in" (referring to anti-libidinal medication). He stated that he may prescribe cyproterone acetate in conjunction with anti-depressant medication. Depending on clinical progress, he might spread out his proposed weekly consultations. 99 Dr Ellis was also asked:- "Q. And how long will it take you, do you think, to assess whether sertraline is doing its job? A. I would expect about six weeks." 100 He stated that if released, he would maintain him on sertraline if he was showing "a positive response to it". He added that if he were to be detained in custody for a period of time, then he would not start the anti-libidinal medication "… until I have a clearer idea about his release date, because it has got more significant health risk side effects than sertraline does …". He added that prescribing anti-libidinal medication in the custodial environment was done on occasions but "… for Mr Cornwall's particular clinical picture, it would not be indicated in a custodial situation". 101 Dr Ellis added that the psychiatric medication is an important part of management "… to reduce his sex drive and sexual thoughts and pre-occupations. I think that also psychological work goes hand in hand with that. They are not mutually - they are complimentary treatments …".

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105 Dr Ellis also addressed the potential benefits for the defendant in undertaking the CUBIT program in custody. He considered that there would be some benefits for Mr Cornwall in a group situation in which he would develop inter-personal skills, learning how to be in a group social situation with others "… which has been an element of his personality that has been difficult". He added:- "… I guess that personality function generally, in psychological and psychiatric literature, takes longer than eight months to show benefit. Given that personality takes years and years to develop, changing it in eight months is less likely. Changing more overt behaviours, such as sexual offending, might be a treatment goal that is more amenable to an eight-month period. So the benefit to Mr Cornwall, from doing a programme such as CUBIT, would be to establish him in a therapeutic relationship: learning how to talk with professionals, talk with peers, and to begin to develop skills for further therapy on his personality and to develop strategies to deal with more overt behaviours, stemming from multiple areas. Ideally, he would also be able to continue to see me while he is at CUBIT … They would be the positive aspects of attending a programme such as CUBIT." 106 Dr Ellis addressed the advantages of individual treatment, as opposed to group therapy and identified the former as having particular advantages, it often, in a therapeutic relationship, being easier to deal with more intense emotional issues and to develop inter-personal skills in an environment with less pressure. Additionally, being in a community, he described as being a "more normalising" experience. Accordingly, he identified a balance of benefits and negatives to both individual and group therapy, but frankly conceding that he was unable to state with confidence which one would be better, adding that he was not as confident as Mr Rendell in stating that CUBIT would be better. A similar "package of treatments" can be offered in either situation, advantages and disadvantages in relation to both. 107 In re-examination, it was put to Dr Ellis:- Q. Dr Ellis, you are aware, particularly after the conference with the relevant experts last week, that all the experts involved in this matter, psychologists and psychiatrists who have assessed Mr Cornwall, all agree that he could be released to this management plan that has been constructed with the assistance of all the relevant parties, such that his risk of re-offending a serious sex offence can be adequately managed, is that right? A. Yes, that's correct. Q. And that involves the various considerations of all of his past and character problems? A. Yes. Q. Including his difficulties, as far as developing inter-personal relationships? A. Yes, that's correct. Q. And that's as you have so eruditely highlighted one of the matters that should be addressed in psychotherapy? A. (witness nodded) Q. But whichever way, he should be treated? A. Yes. That's a core element of his psychotherapy." 108 It was confirmed that he had experience in treating sex offenders who have been released into the community and it was then put to him:- "Q. … and given that background, you are still confident, as much as one can be that - particularly with all the views of the expert - that this Risk Management Plan is appropriate to adequately deal with his risk? A. Yes, that's my view." 109 He confirmed that motivation was important and that the defendant had indicated that he was motivated to engage in treatment and that Mr Cornwall had the benefit of family support which increased one's confidence that the risk management plan could be implemented successfully. 110 Finally Dr Ellis observed that the assessment of progress is more accurate once a person has been released to the community and that the proposed risk management plan gave him "a graded release, in a sense, in that he would be going to Corrective Services custody with considerable monitoring".

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111 Ms Howell stated that she was aware of the proposed risk management plan, that the defendant had been co-operative with her and he was supportive of being released pursuant to an extended supervision order. She had also met with the defendant's brother and sister-in-law and they were very supportive. She confirmed that she would be able to work on a consultative basis with him and in conjunction with Dr Ellis. She proposed that she would see him once a week and she understood Dr Ellis would also him once a week:- "Q. And do you see the combination of those two consultations on a weekly basis being adequate for the appropriate management of his risk in the immediate future? A. Yes, I do. Q. And, of course, the Risk Management Plan has a system of reviews built in that will only take place after consultation between all those responsible for his treatment, and otherwise supervision, by - on behalf of Probation and Parole? A. Yes." 112 The evidence of the defendant's [relative], was that she and her husband operated a doughnut manufacturing outlet. The proposal was the defendant would work in that business, starting at approximately 4.00 am until he would leave the premises shortly before 9.00 am. His brother would be on the premises assisting the defendant. She confirmed there was a school nearby but that this work arrangement would mean that he would have left the premises before school hours. 113 [The relative] stated that she also operated a leaflet distribution business at other premises and some of that work was also done from her home. There was a pre-school next to her home but not near the premises where the leaflet business was primarily conducted. She stated the majority of the work with the leaflets was done on weekends and the plan was to have the defendant assisting her in that business on weekends when the pre-school was not operating. The plan was in relation to the leaflet business that the defendant would be in the company of his brother and they both would continue to provide constant support for him.

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(a) The first defence barrier • Supervision by the Probation and Parole Service. • Communication with officers of that Service and other relevant personnel. • Monitoring of the defendant's activities and conduct. (b) The second defence barrier • Restrictions as to accommodation. • Restriction upon specific activities and movement. (c) The third defence barrier • Specialist medical (psychiatric) treatment (including the administration of anti-depressant medication and potentially at a future point in time, anti-libidinal medication). • Psychological counselling, treatment and support. 143 It is evidence that each of the controls to be provided by the proposed Risk Management Plan is crucial. Given that, if released, the defendant would be working for limited hours early in the morning of each day, there would be many hours in which he is otherwise not specifically engaged in programmed work. The control to be provided by medical treatment, in particular, medication (what I have termed the "third defence barrier"), I consider, in the light of the evidence concerning the nature of the defendant's disorders and the factors underlying them, to be fundamental to the other proposed controls. In the event that prescribed medication is trialled and is established as producing beneficial effects in line with the evidence of Dr Ellis (including, in particular, the suppression of sexual drive), then the level of risk to the community wouldl, of course, be commensurately reduced. Similarly, treatment by way of psychiatric and psychological counselling directed to enhancing what Dr Allnutt has described as the defendant's "limited repertoire of coping when it came to dealing with stress", in conjunction with the medical treatment, hopefully will also operate to reduce the risk or likelihood of re-offending by increasing the defendant's insight, capacity and coping skills. 144 Accordingly the objective is that a combination of psychiatric and psychological treatment and support will, at some point, result in self-regulated control, given, particularly, Dr Allnutt's statement that as at the time of his examination on 12 July 2007, his opinion was that he did not believe "… at this stage, he has developed adequate mechanisms of coping with dysphoric moods in a more constructive manner …". The significance of his dysphoric moods to past offending has been discussed above.

[88]

145 The evidence, in my opinion, plainly establishes that, in the event that Dr Ellis and Ms Howell at a future point in time are in a position to have monitored and assessed the effect on the defendant of both medical (psychiatric) and psychological treatment as having adequately addressed the factors subjacent to the defendant's personality disorder, then the treatment regime, together with what I have referred to as the first and second lines or barriers of defence, may well be seen to be adequate to bring the risk or likelihood of re-offending down to a level that would enable supervision under an extended supervision order to be considered "adequate supervision". 146 The position that presently operates, on the evidence, is that, whilst treatment by medication is, as I have earlier stated, fundamental to the proposed plan, it has not, by reason of a series of circumstances, been trialled for a sufficiently long period of time to enable Dr Ellis to determine what effect it will have upon the defendant, and whether there is a need for an adjustment or change in medical treatment. Similarly, Ms Howell has only recently commenced treatment and has not as yet had the opportunity of developing treatment to a level whereby she is in a position to assess the nature and extent of any beneficial effects which she considers likely to result form such treatment. 147 In written and oral submissions, it was contended on behalf of the defendant that, in all the circumstances, adequate supervision is available upon the release of the defendant. In his written submissions, Mr Dalton SC, for the defendant, addressed the issues concerning the management of the defendant's level of risk (paragraphs 22 to 25). He submitted that "adequate supervision" should be interpreted as adequate available supervision to reduce the risk below a high degree of probability of likelihood to re-offend. I have earlier indicated that adequate supervision, in my opinion, must be such that in the case of a high risk serious sex offender, an extended supervision order is required to be such that it would no longer be "likely" (as interpreted by McClellan CJ at CL in Winters (supra)) that the defendant would commit a further serious sex offence. Mr Dalton relied upon the evidence of Dr Allnutt, Dr O'Dea and Mr Rendell as well as Dr Ellis in contending that "the overwhelming balance of the evidence is that the proposed management plan for a period of five years is adequate to appropriately manage his level of risk in the context of s.17(3) …" (paragraph 22(a) of the defendant's written submission). 148 Mr Dalton also emphasised the support, which the defendant's family would provide and the fact that the defendant had no history of breach of parole orders or extended supervision orders. 149 Whilst Dr Ellis, Mr Rendell and Ms Howell have given evidence, as set out earlier in this judgment (see paragraphs [91], [92], [95] and [111]) that they consider the proposed plan to be adequate to manage the defendant in the community, it would be wrong to treat the answers they gave as to the adequacy of the proposed program divorced or separated from their underlying analyses and diagnoses made of paraphilia and personality disorder, or of the need for specific medical and psychological treatment to be implemented and taken to a stage that will provide the defendant with the necessary capacity and coping skills. The evidence is that it will take some time before the effects of the medication are capable of being assessed and reviewed and, as necessary, modified or adjusted to produce the necessary outcome of reducing the assessed likelihood of the defendant committing a further serious sex offence. 150 Dr Ellis' evidence was to the effect that he has not yet been able to make such an assessment and, as stated above, Ms Howell has only recently embarked upon a treatment program. It will require time for her to exercise her professional expertise in order to develop those matters considered necessary for the defendant to develop the required self-regulation. 151 The difficult matter of risk prediction, emphasised by the expert witnesses, is one that requires an assessment of all the evidence, taking into account the practical operation of an extended supervision order having regard to the particular offender. That practical approach must require some regard to the fact that, although the defendant has not displayed sexually deviant behaviour whilst in prison, the more stimulating environment of the general community for the defendant, who presently lacks the capacity for self-regulation, if released, is a factor to be brought into account in the assessment to be made under s.17(3).

[89]

152 Mr Dalton referred to the fact that Mr Arnott did not put to the experts that they were incorrect in the specific opinions they expressed as to the adequacy of the proposed plan. It is to be remembered that, in this Court, determining an application under the Act, it is required to examine all the evidence (including the opinions expressed by the expert witnesses to which I have specifically referred above). Ultimately, it is for the Court to determine what evidence it ought to accept. A trial judge is not bound to accept expert opinion evidence, particularly where it is evidence on an ultimate issue: Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 at [89] per Heydon JA, as his Honour then was. 153 In the course of his submissions, Mr Dalton adverted to the judgment of McClellan CJ at CL in Winters (supra). The Chief Judge, in that case, referred to the evidence, in particular, of Mr Rendell and expressed confidence in the proposed management plan. His Honour also referred (paragraph 143) to the strict conditions proposed including conditions for monitoring, counselling and the "continuing administration of anti-libidinal medication will, based on past experience, significantly reduce his sex drive. Of course, his continuing ability to accept this form of medication remains uncertain". 154 In the judgment (at 144), McClellan CJ at CL also observed:- "But for two matters, I would have been satisfied that adequate supervision could be provided by an extended supervision order. In the words of the statute, the consequence of the two problems is that I cannot be satisfied that adequate supervision could be provided by an extended supervision order." 155 It is important to note that his Honour's observations are to be construed in light of the evidence adduced in Winters. The Chief Judge recorded (paragraph 51) that, whereas on occasions the defendant in that case had exhibited behaviour consistent with a continuing tendency to commit sexual offences, "… he was, for a time, administered anti-libidinal medication during which there were no reports of unsatisfactory conduct. He chose not to continue with the medication because of side effects …". 156 Accordingly, in Winters, there had been a trial of anti-libidinal medication from which it was possible to assess that the defendant's tendency in that case to commit sexual offences had been attenuated. In the present case, there has, of course, been no trialling of either anti-depressant or anti-libidinal medication. Whether they are suitable medications for the defendant remains to be seen. It is, of course, hoped that they will be suitable and that other treatment over time will enhance the defendant's capacity. Determining the duration of a continuing detention order 157 The maximum period of a continuing detention order is five years: s.18(1)(b ). In determining in a particular case the appropriate period for such an order, the Court, in my opinion, should seek to identify those facts or matters that should guide its determination. 158 In the present case, the defendant will, at least in the short term, require both medical and psychological treatment and potentially may benefit from participation in the CUBIT program which he has stated to Dr Ellis he is prepared to do. That program can take approximately eight months to complete. I take those matters into account in determining the period which I consider to be appropriate for the continuing detention order which I propose to make. The question of the need for ongoing treatment and support beyond the release date will obviously be a matter for future determination. 159 On 27 September 2007, I made the following orders:- 1 Pursuant to s.17(1) of the Crimes (Serious Sex Offenders) Act 2006, Raymond Barry Cornwall is to be detained in a correctional centre for a period of eight months from the date of this order (27 September 2007).

[98]

(vi) There is to be a six monthly meeting with all agencies/parties including Mr Cornwall, … in attendance if required by Viviane (sic) Fahs and/or the relevant probation and parole officer, at which point the Risk Management Plan should be reviewed and adjusted commensurate with the risk as it is determined by all the paries (sic) at that point. 2. Accommodation (i) First option: … (ii) Second option: … (iii) Third option: accommodation at a furnished residence not known to the media, provided by the Commissioner of Corrective Services: 3. Treatment (i) Mr Campbell (sic) is to accept psychiatric treatment, including anti-libidinal and anti-depressant medication as indicated; such treatment to be to be (sic) administered by the CFMHS, its current delegate being Dr Andrew Ellis. (ii) Mr Cornwall should agree to regular medical consultations investigations and blood test as directed by the CFMHS. (iii) Mr Campbell (sic) is to agree to a frequency of consultation as directed by CFMHS, at a venue and time specified by the CFMHS. (iv) Mr Campbell (sic) is to accept psychological treatment with Jenny Howell (or a substitute psychologist if she is away) of a frequency and of a nature deemed appropriate by Jenny Howell, immediately upon release. 4. Further restrictions as required by the Department of Corrective Services: (i) Should Mr Cornwall wish to move accommodation then to reside in accommodation approved by the Department of Corrective Services. (ii) Accept the guidance and supervision of the Special Visitation Group for as long as necessary as determined by the Probation and Parole Service. (iii) Not to be in contact with children less than 18 years approved and supervised by the Special Visitation Group (except family functions when he must be supervised by [a relative] at all times): (iv) Not to use any alcohol or drugs and agree to be subject to drug and alcohol testing. (v) To have drug and alcohol counselling and treatment if indicated. (vi) Not to change appearance unless approved by the Department of Corrective Services. (vii) Agree to be photographed by the Special Visitation Group." **********

ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v CORNWALL

At a glance

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Before

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Judgment (100 paragraphs)

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Legislation Cited (1)

Cases Cited (5)

Cited By (7)