(b) A dynamic risk assessment which considered changeable risk factors which are personal to the defendant.
31 Mr Bright also carried out an actuarial assessment. Since the defendant refused to be interviewed, Mr Bright relied on the dynamic risk assessment prepared by Ms Bel. Both Mr Bright and Ms Bel found that the defendant's raw score on the application of the STATIC - 99 system was 8. This placed him in the high risk category relative to other male sexual offenders (any score of 6 or over is placed in the high risk of re-offending category). The authors of the STATIC - 99 system were not satisfied that there was sufficient evidence to conclude that offenders with scores greater than 6 presented a higher risk of re-offending than those who had a score of 6. However, "as an offender's score increases, there is increased confidence that he is indeed a member of the high risk group" (Bel, affidavit para 39).
32 Dynamic risk factors are those which are related to sexual recidivism but are amenable to change including intimacy deficits, social influences, attitudes, general self-regulation and sexual self-regulation. Mr Bright noted in his report "the greater the number and severity of dynamic risk factors, the more confident one can be that the particular individual being assessed will be a recidivist rather than a non-recidivist" (page 15). Even though the defendant refused to participate in a structured clinical assessment interview for the purposes of Ms Bel preparing her November 2005 assessment report, Ms Bel did have an "unstructured interview" with him on 3 November 2005 which lasted for one and one-quarter hours.
33 Ms Bel's assessment of the defendant's dynamic risk factors was as follows:
"Intimacy deficit - research has demonstrated that those sexual offenders who are in an appropriate supportive relationship have a reduced risk of re-offending. It is of concern that Mr Tillman has committed sexual offences against step children in two separate de facto relationships. This suggests that he is unable to meet his emotional and sexual intimacy needs in the context of an appropriate sexual relationship. Mr Tillman has acknowledged that he finds it difficult to trust others. This is not surprising, given his chaotic childhood history. However, such well entrenched historical factors pose a significant obstacle for his capacity to develop and maintain appropriately supportive intimate relationships with others;
Social influences/supports - it is unclear what social supports Mr Tillman would have in the community and how effective any such supports could be in managing his risk of sexual offending;
Emotional self-regulation - Mr Tillman describes himself as "emotionally fragile" and still suffering the traumatic effects of his own childhood sexual abuse. Depending on how well or otherwise he is able to cope with those feelings, this may add to his risk of sexually re-offending;
Attitudes - based on the comments reported in psychologist John Howard's letter (25.2.02) and other reports, as well as his comments at interview, Mr Tillman appears to take little responsibility for his sexual offending and appears to perceive himself as a "victim" of childhood abuse, of vindictive others (de facto partners), and of "the system". Mr Tillman is unwilling to participate in appropriate treatment.
Sexual self-regulation - Mr Tillman has a lengthy history of sexual offending, beginning when he was only 15 years old. His convicted offences have included victims ranging in age from pre-pubertal female children, to adolescent girls to an adult woman. The circumstances of these offences have included both intro-familial contexts to predatory attacks on unknown females he has encountered in relatively public settings. These factors strongly suggest a wide range of deviant sexual interest and significant difficulties in sexual self-regulation.
General self-regulation - Mr Tillman has a lengthy criminal history including serious offences while still a juvenile. This suggests significant anti-social attitudes and behaviour. He has a significant history of alcohol and drug dependence."
34 Ms Bel's conclusion was:
"Consideration of these dynamic risk factors suggests that without appropriate treatments, Mr Tillman poses a concerning level of risk for sexual and violent re-offending."
35 Dr Lennings refers to the STATIC - 99 system as having "achieved almost gold standard" status in the prediction of sexual recidivism. The working of the STATIC - 99 system was explained as follows:
"The STATIC - 99 consists of ten items and produces estimates of future risk based on a number of risk factors present in any one individual. The risk factors included in the test are the presence of prior sexual offences, having committed a non violent sexual offence, having a history of non sexual violence, the number of previous sentencing dates, aged less than 25 years old, having male victims, having never lived with a lover for two continuous years, having a history of non-contact sexual offences, having unrelated victims, and having stranger victims.
The recidivism estimates provided by the STATIC - 99 are group estimates based on re-convictions and were derived from groups of individuals with these characteristics. As such, these estimates do not directly correspond to the recidivism risk of an individual offender. The offender's risk may be higher or lower than the probability estimated in the STATIC - 99 depending on other risk factors not measured by this instrument."
36 From his review of the materials Dr Lennings concluded:
"A constant theme in the various psychologists and probation officer reports is that Mr Tillman is a high risk sexual offender … Were he to be in the community, high risk means high risk of recidivism and a further sexual offence. It is also the case that assessment of his risk has highlighted the features that make him a high risk recidivating offender. These include his high level of risk on actuarial devices, the persistence of high levels of deviant sexual interest, reluctance or inability to achieve insight into his offending, lack of co-operation with supervision and treatment, high levels of self-absorption and lack of empathy, significant anti-social behaviour, lack of viable harm minimisation plans and strategies and the continuation of offending from an early age until current …".
37 The plaintiff submitted that for the same reasons s17(4)(d) was satisfied in that statistical assessment indicated that the defendant was in the high risk category relative to other male sexual offenders of committing further serious sex offences.
38 In relation to s17(4)(e) - treatment or rehabilitation programs - I have already indicated the defendant's refusal to participate in the CUBIT Program and his reasons for adopting this stance. The defendant told Ms Bel that he had read research suggesting that the CUBIT Program was not effective, he was concerned about its lack of confidentiality and he was afraid because the CUBIT Program was located in the building which was the scene of his sexual assault as an adolescent some 28 years before. Ms Bel noted that the defendant was not receptive to information that this building had been extensively renovated and would bear little resemblance to how it looked at the time of his assault, nor would the defendant agree to participate in a systematic desensitisation process as a preparation to entering the CUBIT Program. It was Ms Bel's opinion that it was unlikely that any form of community treatment would offer the level of intensity of the CUBIT Program.
39 The defendant's refusal to attend the CUBIT Program has emerged as a significant issue. It is therefore necessary to say something about that program. The first intake was in 1999. It is designed for sex offenders with a moderate to high risk of re-offending. This is because of its high intensity nature. The program is conducted in a residential unit. Offenders admitted to the program are accommodated in a special self-contained, forty bed unit located in the Metropolitan Special Program Centre at Long Bay Correctional Centre. The setting is designed to help offenders work intensively on changing the thinking, attitudes and feelings which led to their offending behaviour.
40 The CUBIT facility is run as a "therapeutic community" in which offenders practise newly acquired skills, behaviours and attitudes on a daily basis with advice and feedback from specially trained psychologists and custodial officers. The unit is self-contained and is intended to provide a safe context for the practice and exercise of more pro-social attitudes and behaviours. Since August 2005 groups have been run three mornings per week for approximately 2.5 hours each morning. Between sessions, participants are expected to complete written homework tasks, practise new skills, consider and process the specific issues they are currently working on and provide support and encouragement to other offenders in the community. Weekly community meetings and other community activities underscore the importance of community involvement for all participants and assist with the attainment of treatment goals.
41 During the program participants are expected to take responsibility for their offending behaviour, examine victim issues, identify their offence cycle and develop a detailed relapse prevention program. The CUBIT Program runs for approximately eight - ten months. Because it is a residential program, it is intended that even when participants are not in a group they are in a custom built environment and are working on the new skills they are learning for the whole time. Once an offender has successfully completed the CUBIT Program, the offender must participate in a maintenance program one morning per week.
42 Mr Bright has been actively involved in the CUBIT Program. In his affidavit he noted that group therapy such as the CUBIT Program is "almost universally recognised as the treatment modality of choice with sexual offenders". Having said that, Mr Bright also referred to research that "despite sound theoretical rationales for employing group therapy rather than individual therapy, and despite the preference for group therapy among the majority of sexual offender treatment providers, there is little evidence of differential treatment efficacy with adult sexual offenders". (Affidavit, para 39.) It seems that group treatment for sexual offenders is more time and cost efficient than individual therapy and this may well explain its preference as treatment in correctional institutions.
43 In relation to compliance with parole and other conditions whilst at liberty (s17(4)(f)) the plaintiff referred to 1984 and 1988 when the defendant had committed offences whilst on parole. In that regard the breach in 1984 did involve a sexual offence but that in 1988 related to a receiving charge. In any event, these breaches occurred approximately 20 years ago and there is no recent history of breaches of conditions whilst at liberty.
44 Finally, it was submitted by the plaintiff that the defendant's criminal history and pattern of offending strongly suggested a wide range of deviant sexual interest and significant difficulties in sexual self-regulation. It was submitted that this established pattern of offending behaviour satisfied s17(4)(h).
45 The plaintiff submitted that an extended supervision order would not provide adequate protection for the community nor would it provide appropriate rehabilitation for the defendant. It was submitted that the only way in which proper rehabilitation could be provided for the defendant was if he remained in custody so that he could attend and complete the CUBIT Program. Any treatment which he might seek and undergo whilst at liberty would lack the intensity and residential supervision inherent in the CUBIT Program. All of the psychological evidence recommended the CUBIT Program as the best treatment for the defendant so as to address the high risk of sexual re-offending.
46 On behalf of the defendant it was submitted that the plaintiff's application ought be refused and that the defendant ought be released on 18 April 2007 without conditions. The basis for that submission was that the plaintiff's application had been made too late and was fundamentally unfair to the defendant. The defendant's application for parole had been refused on 15 September 2006. From that date onwards it was known by the plaintiff that the defendant would be due for release on 18 April. Under the Act the plaintiff had six months from 18 October 2006 within which to bring this application, but it had not done so until 11 April 2007, ie seven days before the defendant's release date.
47 It was submitted that it was fundamentally unfair to expose the defendant to further imprisonment at such late notice and in circumstances where he had no opportunity to challenge the evidence against him. The last minute nature of the application also prevented the defendant from being able to adduce evidence on his own behalf. The defendant had not been able to provide psychiatric/psychological evidence on his own behalf and not been able to provide evidence that he could satisfy conditions for the protection of the community and for his own rehabilitation if he was allowed at liberty.
48 The defendant also submitted that although the psychological evidence was all one way, on close analysis it did not reach the standard required by the Act, ie sufficient to satisfy the court "to a high degree of probability" that the defendant was likely to commit a further serious sex offence.
49 It was submitted that the plaintiff's case was no higher than that the defendant was an untreated sex offender. The STATIC - 99 test identified the defendant as high risk but this was a test based on group behaviour, it did not deal with the characteristics specific to this defendant. No proper structured examination of the defendant had been carried out to identify the dynamic characteristics. At most Ms Bel had carried out an informal assessment. There was a real risk that the defendant was being punished because of his lack of co-operation with the Corrective Service psychologists and because of his refusal to participate in the CUBIT Program. No challenge had been made to the defendant's assertion that he was prepared to undergo appropriate treatment, provided that treatment was carried out on an individual basis and not in a group context.
50 Although it was not his first preference, the defendant indicated through his senior counsel that he would be prepared to comply with the alternative order sought by the plaintiff in the summons, ie an extended supervision order for 28 days. With some slight modification he was prepared to comply with all of the conditions set out in paragraph 7 of the summons. These conditions are:
"(a) The defendant reside at an address approved by a Corrective Services Officer.
(b) The defendant must accept home visits by a Corrective Services Officer as directed by that officer.
(c) The defendant must report to a Corrective Services Officer as directed by that officer.
(d) The defendant shall not change his place of residence without prior approval of a Corrective Services Officer.
(e) The defendant must not associate or make contact with children aged 16 years or under.
(f) The defendant must not attend the public places regularly frequented by children and in which children are present at the time including, but not limited to, schools and amusement parlours and such places as a Corrective Services Officer may direct.
(g) The defendant must wear electronic monitoring equipment as directed by a Corrective Services Officer.
(h) The defendant must not change his name from Kenneth Davidson Tillman.
(i) The defendant must participate in treatment and rehabilitation as directed by a Corrective Services Officer".
51 The modifications suggested relate to condition (e) so that the prohibition would be qualified by the words "unless the child was accompanied by a parent or a Corrective Services Officer". The second modification related to condition (i) as follows: "Except that the defendant shall not be required to attend the CUBIT Program or any other treatment program based on group therapy".
52 Before the conclusion of the matter I was advised by counsel for the plaintiff that although no specific location had been identified, the Department of Corrective Services did have access to certain addresses where serious sexual offenders such as the defendant could reside. I was also advised by counsel for the plaintiff that appropriate electronic monitoring equipment was available and could be used in respect of the defendant so as to comply with condition (g).