Attorney General for the State of New South Wales v Tillman

Attorney General for the State of New South Wales v Tillman - [2007] NSWSC 605 - NSWSC 2007 case summary — Zoe

[14]

The scheme of the Act 5 The Act commenced on 3 April 2006. The present application appears to be the first determination of a claim for final orders under Part 3, which provides for detention orders. 6 The objects of the Act are to provide for the extended supervision and continuing detention of serious sex offenders so as: (a) to ensure the safety and protection of the community, and (b) to facilitate the rehabilitation of serious sex offenders. 7 A serious sex offender is 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. 8 A serious sex offence is defined in s 5(1) of the Act and means any of the following offences: (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), (b) An offence under section 38, 111, 112 or 113 of the Crimes Act 1900 that has been committed with intent to commit an offence under Division 10 of Part 3 of the Crimes Act 1900, where the offence intended to be committed is punishable by imprisonment for seven years or more, and includes: (c) An offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be a serious sex offence for the purposes of this Act, and (d) any other offence that, at the time it was committed, was a serious sex offence for the purposes of this Act. 9 The defendant is a serious sex offender within the meaning of the Act. 10 The Act empowers the court on the application of the Attorney General to make an extended supervision order (for which provision is made in Part 2) or a continuing detention order (for which provision is made in Part 3). Each order operates to extend the period of control over a serious sex offender beyond the term of the sentence of imprisonment imposed in consequence of conviction for his or her sex offence. 11 Section 17 provides: 17 Determination of application for continuing detention order

[15]

(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 section 15 (4) to conduct psychiatric examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious sex offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious sex offence, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (f) the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature. (5) Part 2 applies to an extended supervision order made under this section in the same way as it applies to an extended supervision order made under section 9. 12 A continuing detention order expires at the end of such period (not exceeding five years from the date on which it commences) as is specified in the order (s 18(1)(b)). There is no bar to the court making a second or subsequent continuing detention order against the same offender (s 18(3)). 13 The court may at any time vary or revoke a continuing detention order on the application of the Attorney General or the offender (s 19). 14 In determining an application for a continuing detention order the court may make an extended supervision order. Conditions may be imposed on an extended supervision order including those set out in s 11. A person who fails to comply with the requirements of an extended supervision order is guilty of an offence. 15 An offender who breaches an extended supervision order may be charged with an offence under s 12 of the Act and on conviction sentenced to a term of imprisonment not exceeding two years. He or she may be made the subject of a continuing detention order or a further extended supervision order at the completion of such a sentence.

[16]

The test under s 17(3) of the Act 16 The first question for determination concerns the test provided by s 17(3). The plaintiff submitted that subsection (3) provides a standard of proof, satisfaction to a high degree of probability, a standard that is lower than the criminal standard of proof beyond reasonable doubt and higher than the civil standard of proof upon the balance of probabilities. There are two matters that the plaintiff is required to prove upon this standard: (i) the defendant is likely to commit a further serious sex offence if he is not kept under supervision, and (ii) adequate supervision will not be provided by an extended supervision order. 17 In the plaintiff's submission, "adequate" supervision means supervision adequate to eliminate, or at the very least, substantially reduce, the likelihood that the defendant will re-offend. 18 In the plaintiff's submission, "likely" is used in what is said to be its ordinary sense and means "substantial - a real and not remote chance regardless or whether it is more or less than 50 per cent": Boughey v R (1986) 161 CLR 10 per Mason, Wilson and Deane JJ at 21. 19 The plaintiff's submissions are consistent with the approach adopted by McClellan CJ at CL in determining a claim for interim orders at a preliminary hearing in Attorney General for the State of New South Wales v Gallagher [2006] NSWSC 340 (at [34]): The meaning of those words has not been fully argued on this application. However, for the present purposes I accept that before an order can be made I must be satisfied of the likelihood that the defendant will re-offend to a high degree of probability. It presently seems to me that the Act imposes a standard of proof higher than the ordinary civil standard but less than the criminal standard beyond reasonable doubt. The caution that an order can only be made "if and only if" the court is relevantly satisfied emphasises the care with which the court must approach the question of whether to make orders imposing continuing restrictions, in whatever form, on a person's liberty. One potential difficulty with the subsection is the conjunction of that requirement i.e. that the court be satisfied to a "high degree of probability", with the question of whether the offender is "likely to commit a further serious sex offence". The word "likely" presently appears to me to be used in its ordinary meaning which, as the High Court pointed out in Boughey v The Queen (1986) 161 CLR at 10 conveys the notion of "substantial - a real and not remote - chance regardless of whether it is less or more than 50 percent": see also R v SLD (2003) 58 NSWLR 589 at 32; Teremoana (1990) 49 A Crim R 207 at 217; Dowling v Dalgety Australia Limited (1992) 34 FCR 109 at 136. [35] However, it will be necessary to give careful consideration to the context in which the word "likely" is used in the present legislation upon the final determination of this matter.

[17]

20 The plaintiff submitted that the difficulty to which McClellan CJ at CL referred in the concluding passage in [34] above is to be resolved in this way: The standard of high degree of probability is directed to the quality and strength of the evidence of the facts present and past, which taken with the expert opinion based on those facts, provides the basis for a finding of present likelihood of future conduct. In this respect counsel for the plaintiff referred to the judgment of Handley JA (with whose judgment the other members of the Court concurred) in R v SLD [2003] NSWCCA 310; 58 NSWLR 589 at 595-597 [34] - [40]. SLD was an appeal against the severity of sentence. The primary judge made findings, including that the applicant posed "a significant level of future dangerous" and there was a "substantial risk" of him "re-offending in both violent and sexual ways. Handley JA cited the judgment of the Supreme Court of Canada in Lyons v The Queen [1987] 2 SCR 309 at 363-365; (1987) 44 DLR (4th) 193 at 238-239: The appellant submits … that s 688, in requiring proof that the offender constitutes a threat to the life, safety or physical or mental well-being of other persons, or that there is a likelihood of the offender causing injury, pain or other evil to other persons … is fundamentally unfair in that the standard of proof required of the Crown is lower than that traditionally required in the criminal law … I do not believe that [this submission] is valid. First, it is important to recognise exactly what is and what is not required to be proved on such an application. Paragraphs (a) and (b) of s 688 both require proof that the offender represents a threat of some sort to society. It is nowhere required that it be proved that the offender will act in a certain way. Indeed, inherent in the notion of dangerousness is the risk, not the certainty of harm. The appellant asserts that a "likelihood" is ipso facto not susceptible of proof beyond a reasonable doubt … The criminal law must operate in a world governed by practical considerations rather than abstract logic and, as a matter of practicality, the most that can be established in a future context is a likelihood of certain events occurring … Moreover I am not convinced, even as a matter of logic, that the appellant's submission is sound. It seems to me that a "likelihood" of specified future conduct occurring is the finding of fact required to be established … Logically it seems clear to me that an individual can be found to constitute a threat to society without insisting that this require the Court to assert an ability to predict the future. I do not find it illogical for a Court to assert that it is satisfied beyond a reasonable doubt that the test of dangerousness has been met, that there exists a certain potential for harm. That this is really only an apparent paradox is aptly captured by Morden J in R v Knight (1975) 27 CCC (2d) 343 at p356 ((Ont) HC): I wish to make it clear that when I refer to the requisite standard of proof respecting likelihood I am not imposing on myself an obligation to find it proven beyond a reasonable doubt that certain events will happen in the future - this, in the nature of things would be impossible in practically every case - but I do refer to the quality and strength of the evidence of past and present facts together with the expert opinion thereon, as an existing basis for finding present likelihood of future conduct. (Emphasis supplied) 21 Handley JA held that the primary judge had made findings on the criminal onus that were open to him on the evidence about what was "presently known" and on this basis findings had been made concerning the risk to the community. His Honour noted that the primary judge had not presumed to assess the risk of future serious criminality on the basis of satisfaction that the offender would re-offend (at [39]). 22 Mr Cook, who appeared on behalf of the defendant, submitted that s 17(3) of the Act should be construed consistently with the construction placed on a similarly worded provision of the Serious Sex Offenders Monitoring Act 2005 (Vic) by the Court of Appeal of Victoria in TSL v The Secretary to the Department of Justice [2006] VSCA 199 per Calloway AP (with whom Buchanan JA and Coldrey AJA agreed) at [6] to [12]: [6] The language of the application reflects the language of s 11 of the Act, the first three sub-sections of which provide: (1) A court may only make an extended supervision order in respect of an offender if it is satisfied, to a high degree of probability, that the offender is likely to commit a relevant offence if released in the community on completion of the service of any custodial sentence that he or she is serving, or was serving at the time at which the application was made, and not made subject to an extended supervision order. (2) The Secretary has the onus of proving the existence of the likelihood referred to in subsection (1). (3) In determining whether the offender is likely to commit a relevant offence in the circumstances described in subsection (1), the court must, subject to subsection (5), have regard to - (a) any assessment report filed in court, whether by or on behalf of the Secretary or the offender; and (b) any other report made, or evidence given, by a medical expert - and may have regard to anything else that it considers appropriate. (Emphasis added). …

[18]

[7] Parliament could have provided that the court must be satisfied, to a high degree of probability, that the offender would be a serious danger to the community if released and not made subject to an extended supervision order, but the legislature chose to be more precise. Instead of a serious danger to the community, there is the more specific test whether the offender is likely to commit a relevant offence. Having regard to the main purpose of the Monitoring Act, the fact that the offender is likely to commit a relevant offence is a surrogate, or prima facie or presumptive surrogate, for his or her being a serious danger to the community. That it is only a prima facie or presumptive surrogate is suggested by the fact that the court retains a discretion not to make an order. The court "may", not "must", make an extended supervision order if it is satisfied that the offender is likely to commit a relevant offence. [8] There are broadly two ways in which the words in s 11(1) that I have italicised in [6] may be read. On either view, the issue to be decided is whether the offender is likely to commit a relevant offence. That is the fact of which the court must be satisfied. The first way in which the words may be read is that "high degree of probability" performs a function similar to the expressions "balance of probabilities" and "beyond reasonable doubt", so that the court must be satisfied to that standard that the offender is likely to commit a relevant offence. In order to express the point simply, let us use "being reasonably sure" as shorthand for satisfaction to a high degree of probability. On the first reading of the words, they would mean that the court must be reasonably sure that the offender is likely to commit a relevant offence. [9] The other reading of the italicised words in [6] takes as its starting point the fact that the meaning of "likely" varies according to the context in which it is used. Because it was concerned with the future, Parliament could not require the court to be satisfied that the offender will commit a relevant offence. All that the court could be satisfied of is that the offender is likely to do so or that there is a risk that the offender will do so. The ordinary meaning of likely, as explained by Mason, Wilson and Deane JJ in Boughey v R , is "a substantial - a 'real and not remote' - chance". Not surprisingly, Parliament considered that threshold to be too low. The expression "to a high degree of probability" was included to show that, in this context, "likely" connotes a high degree of probability. On this second reading of the italicised words, the court must be satisfied that there is a high degree of probability that the offender will commit a relevant offence. [10] In my opinion, the second meaning is to be preferred. It is understandable that Parliamentary counsel would have chosen the word "likely" in relation to a future state of affairs but almost inconceivable that Parliament would have intended that word to bear its ordinary meaning. All too many offenders are likely, in that sense, to commit a relevant offence. A person subject to an extended supervision order is a prisoner in all but name. The threshold would be far too low, in a free society, if a court had a discretion to make an extended supervision order simply because it was satisfied that there was "a substantial - a 'real and not remote' - chance" of his or her re-offending. That is why the word "likely" in s 11(1) is used in the sense of a high degree of probability. [11] I desire to guard against misunderstanding. To say that "likely" is used in that sense does not mean that the Secretary must prove that it is more likely than not that a person will commit a relevant offence. Likelihood, in the ordinary sense of that word identified in Boughey v R , includes a low degree of probability. What the legislature requires the court to be satisfied of is a high degree of probability. There is no reason to think that it must be more than 50%. With experience, it may be possible to be more precise, but we should always return to the words the legislature has chosen and the context in which they appear. [12] The conclusion that the word "likely" in s 11(1) is used in the sense of a high degree of probability accords with the main purpose of the Monitoring Act as stated in s 1. The Act is concerned with offenders who are a serious danger to the community. It also accords with the second reading speeches, which explained that the legislation was aimed at high risk offenders and offenders assessed as being at high risk of re-offending. It is also the construction that the learned judge was invited to adopt. Mr Grace appeared for the Secretary below. He submitted, correctly, "[T]here is a degree of probability that [TSL] will commit a relevant offence if not subject to supervision or to an extended supervision order. The question is whether it is a high degree." I readily assume that her Honour directed herself in the same way. Her decision cannot be impugned on the basis that she asked the wrong question. (Footnotes omitted) 23 Counsel for the plaintiff submitted that the Victorian Court had adopted a contextual approach to the construction of s 11(1) of the Monitoring Act and noted the scheme of that Act differs in significant respects from the scheme of the Act. While the similarity in the wording between s 11(1) and s 17(3) was acknowledged, it was noted that s 11(2) of the Monitoring Act has no counterpart in the Act. It is not clear that the differences between the schemes of the two Acts provide a basis for rejecting the approach that the Court took on contextual grounds. The reasons which led their Honours to conclude that it was "almost inconceivable" that Parliament would have intended "likely" to bear its ordinary meaning might be thought to have greater force in the context of a scheme which makes provision for continuing detention orders. 24 In TSL the Court took into account the provisions of s 7(2) of the Charter of Human Rights and Responsibilities, observing that "The Charter of Human Rights and Responsibilities 2006 (Vic) is not yet in force, but the nature of our society is a legitimate factor to take into account in construing the legislation." (footnote [15].) In this respect it seems to me that the plaintiff's submission that s 17(3) of the Act should be construed in accordance with its terms and not by reference to the approach taken to the Victorian Monitoring Act has force.

[34]

33 The defendant is aged 45 years. He is an Aboriginal man who was raised in a dysfunctional and abusive family environment. His father was alcoholic and subjected the defendant and the defendant's mother to physical abuse. When he was eight years old the defendant watched his grandfather beating his grandmother to death. The defendant's mother was alcoholic and she had many sexual partners. The defendant spent time living with her and with various relatives and in children's homes. He experienced sexual abuse in an institutional setting and at home. He first came before the Children's Court when he was 9 years old. He was found to be a neglected child and he was released on probation. He was made a ward of the Minister when he was 14 years old. 34 The defendant has been continuously in custody for the past 10 years. He last committed a sexual offence when he was aged 34 years. In the time that he has been in custody serving the present sentences he has undertaken a Bachelor of Social Science in Aboriginal Health and completed the academic requirements for the degree, save for the practical component. 35 The defendant has three children, two adult daughters and an 11 year-old son. His daughters are the product of his relationship with his former de facto partner, Kerry. He was convicted of sexually assaulting Kerry's older daughter and this caused the breakdown of the relationship. In recent times he has resumed contact with Kerry, with whom he now has friendly relations. He has contact with his daughters, who appear to be reasonably well disposed towards him. He has three grandchildren; one of his daughters has two young girls and his other daughter has a young boy. Each of the daughters is in a relationship with a male partner who is aware of the defendant's history of sexual offending. The defendant wishes to have contact with his daughters and grandchildren on his release from custody. 36 The defendant's 11 year-old son is the product of his de facto relationship with a woman named Karen. The defendant has been convicted of the sexual assault of Karen's nine year-old daughter. There is no contact between the defendant and Karen and she has been resistant to him having any contact with their son. 37 One way in which the plaintiff seeks to establish that the defendant is likely to commit a further serious sex offence if he is not kept under supervision involves an examination of his criminal history, which spans 20 years and which includes repeated serious sexual offending. 38 The defendant's first sexual offence was committed when he was aged 15 years. He raped a young married woman who was 22 years old. He followed her in daylight from Redfern Railway Station to her residence in Waterloo. He knocked on the front door of her flat and managed to gain entry by claiming that he needed to telephone his mother. Once inside he menaced the victim by holding a knife to her neck, forcing her into the bedroom where he raped her. At the time he had a minor record for offences of dishonesty. His fingerprints were found on the knife and the police arrested him at his home shortly after the offence. He admitted to committing the offence. On 23 February 1977 he was sentenced to a term of eight years' penal servitude. A non-parole period of three years was specified. He was released on parole on 3 November 1980. 39 On 17 November 1980 while he was on parole the defendant was convicted of larceny for this offence he was sentenced to four months' imprisonment. 40 On 6 February 1981 the defendant was convicted of the offences of (i) break, enter and steal; (ii) receiving; (iii) resist arrest; (iv) assault police; and (v) stealing a motor vehicle. He was sentenced for these offences to an overall term of 12 months' imprisonment with a non-parole period of 6 months. 41 On 7 August 1982 while he was still on parole the defendant committed a serious sex offence; sexual intercourse with MJW without consent knowing MJW was not consenting she being a person under the age of 16 years. MJW was aged 13 years. She and her boyfriend had run away from home. They met up with the defendant and a group of people who were drinking around a fire on the bank of the Nepean river. MJW told the defendant that she and her boyfriend were run-aways. He offered to put them up at his home overnight. Later he told the boy to wait by a tree while he took MJW away under the pretext of checking with the other householders whether it was alright for them to stay. He took MJW to a secluded area where he had sexual intercourse with her without her consent. After this he took her and her boyfriend to the house at which he was staying and told them that they could sleep in his car. After a time they left and raised the alarm. The police identified the defendant and he voluntarily attended at the police station.

[36]

45 The defendant as released on parole on 23 September 1986. His parole order was conditioned that he accept such assistance as his parole officer may advise with respect to his consumption of alcohol. The parole order was revoked with effect from 27 February 1987. On 8 May 1987 the Parole Board rescinded the revocation order. Subsequently, the defendant failed to report to his probation officer on a number of occasions. On 17 June 1988 the defendant's parole order was again revoked. 46 On 31 July 1988 the defendant was convicted of the offence of receiving and a number of driving offences. He was sentenced for these offences to an overall sentence of 12 months' imprisonment with a six-month non-parole period. 47 On 2 March 1989 the defendant was released from custody. He was living with Kerry. Kerry had a daughter, SW, from a previous relationship who was 10 years old. On 7 and 8 August 1989 the defendant sexually assaulted SW. He was arrested for these offences on 10 August 1989 and he was returned to custody. 48 On 6 June 1990 the defendant was convicted following trial of two counts of sexual intercourse with a person under 16 years who was under his authority and with one count of indecent assault arising out of the allegations made by SW. He was sentenced for these offences by Gibson DCJ on 7 November 1990. SW's evidence was that the three incidents were taken from a number of such incidents that had occurred during the period that the family was living at Macquarie Fields. Judge Gibson took into account the contents of a drug and alcohol report, which stated that the defendant was making efforts to rehabilitate himself. He was sentenced to imprisonment for four and a half years to date from 10 August 1989 and to expire on 9 February 1994 on the counts involving sexual intercourse with SW. An additional term of 18 months expiring on 9 August 1995 was specified. The defendant served the whole of the term of this sentence. 49 Following his release from custody on 9 August 1995 the defendant went to Queensland. In October 1995 while he was in Queensland he commenced a relationship with Karen. Karen was the mother of two girls; MAL, aged nine years and an infant. Karen became pregnant and in July 1996 she was admitted to hospital for the birth of the baby. During her stay in hospital the defendant sexually abused MAL. 50 On 18 March 1997 the defendant was taken into custody in connection with the offences against MAL. On 8 April he was released on bail. On 19 April he assaulted a 15-year-old girl. 51 The defendant denied that he had sexually assaulted MAL. He stood trial at the Lismore District Court before Ducker DCJ and a jury. He was convicted of two counts of sexual intercourse with a person aged under 10 years. Each count involved an allegation that he had forced MAL to perform fellatio on him. He was convicted of a third count involving attempted sexual intercourse with MAL (attempted penile penetration).

[42]

58 Each of the psychologists considers the defendant to be a high risk of sexual re-offending. Dr Allnutt assesses him as being a high risk of sexual re-offending and Professor Greenberg assesses him as a moderate to high-risk of re-offending. 59 One focus of the expert evidence was on the defendant's refusal to undergo the CUBIT program and, more generally, on the effectiveness of this program and other forms of treatment in reducing the risk of sexual re-offending. Jayson Ware, a psychologist, with a background in the assessment and treatment of sex offenders, is the DCS's Clinical Co-ordinator of Sex Offenders Programs. He gave evidence directed principally to these issues. 60 The defendant gave evidence of his willingness to be supervised in the community and to accept onerous conditions. Dr Daniels, the Director of the Aboriginal Medical Service (the AMS), gave evidence on the defendant's behalf of the assistance that the AMS is willing to provide to the defendant to ameliorate the risk of him re-offending. Sister Evelyn Crotty, of the Sisters of Mercy, gave evidence of her contact with the defendant and of the support which she would be able to offer to him on his release into the community. 61 No exert evidence was led on the defendant's behalf relating to his risk of committing further serious sex offences. 62 Mr Cook submitted that the plaintiff had failed to establish that the defendant is likely to commit a further serious sex offence if he is not kept under supervision. At the heart of Mr Cook's submissions were two contentions: to the extent that the experts based their assessment of risk on the STATIC-99 instrument, it did not provide a sound basis for a conclusion of likelihood that this defendant would re-offend and to the extent that their assessment was based on a consideration of factors personal to the defendant insufficient weight was given to the fact that he had spent 10 years in custody and was now a man aged 45 years. I will review the expert evidence and return to these contentions.

[48]

73 Professor Greenberg expresses similar caution. He points out that the severe limitation with actuarial scales, such as the STATIC-99, lies in the fact they inform about a risk group of sex offenders relative to other sex offenders in the same category and do not identify which offender will re-offend and which offender will not re-offend within the same category. All that can be deduced from the scales is that in a group of sex offenders with similar scores a percentage will re-offend within a 15 year or longer period while the remaining group will not re-offend based on re-arrest rates. 74 Professor Greenberg comments on a further limitation in the value of STATIC-99 which is that the scales have not previously been fully validated on an Australian population. He has conducted a validation study involving a Western Australian sex offender population and found the STATIC-99 to have an acceptable level of validity. He agrees with the characterisation of the instrument as having a moderate accuracy in the prediction of sexual re-offending behaviour. It is better than chance in its prediction, but it should be used in conjunction with a clinically guided risk assessment. 75 Professor Greenberg also comments on another measure of sexual recidivism, the Sex Offender Need Assessment Rating (SONAR) scale, which identifies a number of variables that are thought to relate to sexual recidivism. SONAR addresses five dynamic (changeable over time) risk factors: intimacy deficits; negative social influences; attitudes to sexual offending; sexual self-regulation; general self-regulation and four acute dynamic factors, substance abuse; negative mood; anger and victim access. According to Professor Greenberg, the limitation of this scale is that dynamic risk factors have not consistently been shown to have any influence on the eventual risk outcome, namely reduction in sexual recidivism. 76 The defendant is in the high-risk category of offenders in the STATIC-99 scale. This does not establish to the high standard that s 17(3) requires that he is likely to commit a further serious sex offence. It has been shown to be a predictive tool of moderate value and I have regard to the defendant's high score on it in conjunction with the assessment made of him by the various health professionals based upon a consideration of factors that are specific to him.

[53]

· Intimacy deficits - the defendant's relationship history suggested an inability to meet his emotional and sexual intimacy needs in the context of an appropriate sexual relationship; · social influences/supports - Ms Bel noted that it is unclear what social supports the defendant would have in the community and how effective such supports could be in managing his risk of sexual offending; · emotional self-regulation - the defendant had described himself as "emotionally fragile" and as still suffering the traumatic effects of his own childhood sexual abuse; · attitudes - the comments in a letter by Dr John Howard, and in other reports, together with things that the defendant said during the interview were suggestive of him taking little responsibility for his sexual offending. Ms Bel commented that he appeared to perceive himself as a victim of childhood abuse, of vindictive partners, and of "the system" and that he was unwilling to participate in appropriate treatment; · sexual self-regulation - the defendant's criminal history suggested a wide range of deviant sexual interest and difficulties in sexual self-regulation; · general self-regulation - the defendant's criminal history was suggestive of significant antisocial attitudes and behaviour. 81 In Ms Bel's opinion, the defendant's dynamic risk factors suggest that without appropriate treatment he poses a concerning level of risk of sexual re-offending. 82 David Bright assessed the defendant by reference to the STATIC-99 and he read Ms Bel's report and agreed with her conclusion. Mr Bright was not aware that the defendant had completed the coursework requirements for a degree while in custody. He was asked whether the defendant's achievement in this respect is a factor that is relevant to assessing his potential for sexual re-offending. Mr Bright said that there is no evidence that educational achievements are related to risk. He considered that it is positive that the defendant has been able to apply himself at a university level and that this is probably consistent with him being now better able to manage his life. However, Mr Bright observed that educational attainments do not bear on an individual's capacity to deal with emotional stress and that this is a significant factor in assessing the risk of sexual re-offending. 83 Dr Lennings expresses an opinion concerning the likelihood of the defendant re-offending based on the STATIC-99 and on other assessment tools designed to predict risk of sexual recidivism. Dr Lennings has not interviewed the defendant. His assessment is based on his review of the defendant's criminal history and the contents of DCS' files. 84 Dr Lennings notes that the defendant presents as an offender who has moved from targeting adults to teenagers and eventually to pre-pubescent children. He considered that a provisional diagnosis of paedophilic interests might apply, but that the reluctance of the defendant to submit to psychological investigation made it hard to establish a diagnosis. The defendant's refusal to undertake appropriate psychological interviews or treatment left Dr Lennings with no way of knowing whether he has much understanding of what introduces risk into his behaviour or why he offends.

[58]

91 At the time Dr Allnutt first assessed the defendant he was living in a hostel. He was wearing an electronic bracelet. He had been at liberty for six days, having completed a sentence of imprisonment of 10 years. He told Dr Allnutt that he was not happy with the life that he had lived, having spent more than half of it in prison and homes. He was being treated with an antidepressant medication, Efexor. He had been commenced on this medication about two years prior to his release from custody. Before that he had been treated with Zoloft, another form of antidepressant medication. He said that Zoloft had helped to calm him, but that he had felt better following the change to Efexor. He described experiencing reduced sexual interest, which he attributed to the effects of Efexor. 92 The defendant was unable to explain his offences or to offer an explanation for what had motivated him to offend in his interviews with Dr Allnutt. He said that he was disgusted with his offending. At his initial interview the defendant said that he was planning to get some treatment and he was waiting for an authorisation from the authorities in this respect. He said that he needed to "put me life back together". 93 Dr Allnutt obtained a history of the defendant's sexual offences. The defendant acknowledged the rape of the young woman when he was aged 15 years. This offence occurred during the daytime and does not appear to have been associated with the ingestion of alcohol or other drugs. 94 The defendant told Dr Allnutt that he had been out of gaol for about two years and was living with his partner, who later became the mother of his children, at the time of the offence against MJW. He said that he had a poor recall of the details of this offence. He believed that he had been drinking and possibly smoking cannabis at the time. 95 The defendant gave an account of drinking "a fair bit" of alcohol on a daily basis at the time of the sexual offences involving SW. He said that the offending occurred over a period of months. He said that he had first become sexually aroused with SW when the offence happened. Dr Allnutt found it difficult to get a detailed account from the defendant of these offences. It was unclear whether the defendant had a poor memory or was merely reluctant to talk about them.

[60]

97 Dr Allnutt noted that the defendant's sexual offending has spanned a lengthy period of about 19 years. Dr Allnutt observed: His choice of victim has changed over time and, as noted by other clinicians, he has gradually seen to move down in age, starting with adult age to pubescent and more recently pre-pubescent victims. In my view, this is cause for concern and does suggest an "escalation" in his sexual offending, in that there is an escalation in the choice of more vulnerable victims. His sexual offending could be regarded as recurrent. 98 Dr Allnutt considered that the two sets of offences involving children which occurred with a greater than six-month interval between them was consistent with a diagnosis of paedophilia. 99 Dr Allnutt stated: Although difficult to assess, I have concerns that he maintains attitudes, and values that might justify his sexual offending. I formed this view because of the difficulty in obtaining information from him in this regard; while had made superficial comments about the offending being unacceptable I did not get the impression that he fully appreciated this. He has difficulty in accepting responsibility for the most recent offence and attributes the offence to the victim and the victim's mother pursuing secondary roles. If I accept that the offence has been correctly proven, this would suggest to me that he has not yet reached the stage in his rehabilitation where he appreciates the concern about his sexual behaviour and the need for it to be addressed. 100 Dr Allnutt considered it a concern that the defendant was not able to articulate his motives for sexual offending and that he was thus unlikely to have a capacity to be aware of triggers to sexual offending. Of concern was the history of coping with stressors by the abuse of alcohol. Dr Allnutt considers it positive that the defendant has pursued a therapeutic relationship with the psychologist, Dr Howard. However, he notes that it iss not clear that the therapists with whom the defendant has had dealings in the past were trained in the treatment of sexual offending. In Dr Allnutt's opinion, the defendant requires specialist treatment with mental health professionals experienced in the treatment and rehabilitation of recidivist sexual offenders.

[63]

103 Dr Allnutt assessed the defendant by reference to actuarial measures and by use of the Sexual Violence Risk 20, a tool that provides a framework to guide clinical assessment of risk. He concludes: Overall with regard to the clinical assessment and actuarial measures, the evidence supports the conclusion that he falls into a group of sex offenders who are at a high risk for sexual recidivism at the time of release. There is convergence between the clinical and actuarial assessments, which supports this conclusion. Whether or not he, as an individual will or will not in fact re-offend cannot be stated with reasonable medical certainty. This is because the term "high-risk" denotes a probability and not a certainty. Being a member of a "high-risk group" means that the person belongs to a group of individuals of whom a relatively higher number will re-offend and a relatively smaller number will not. It is difficult to determine if a particular individual within that group will be one of those that in fact offends or one of the others in the same group who in fact do not offend. He will require intense supervision, treatment and monitoring when in the community. The Court should be aware that at this stage there are no comprehensive community based sex offender treatment programs for high-risk offenders that are provided by Probation and Parole. Thus he would enter a community program that might not have the resources or capacities to manage his risk. Whether or not the Forensic Psychology Services could provide more intense follow-up, monitoring and supervision in his particular case would need to be addressed by them. The Community Forensic Mental Health Service, under Justice Health, could assist the Forensic Psychology Services and in conjunction with them provide psychiatric oversight of his depression and supervision of his Efexor or other sex drive suppressant medication should he consent. Private practitioners conduct most of the management of high-risk sex offenders but as far as I am aware they do not offer a comprehensive programme relapse prevention programme.

[83]

141 Narcisa Sutton is a psychologist employed by the DCS as the Therapeutic Manager of the Forensic Psychology Services Branch (FPS). This Branch provides treatment for sex offenders in the community. Following the defendant's release on an interim supervision order Ms Sutton was appointed to conduct therapeutic treatment sessions with him. She met him on four occasions. Ms Sutton says that at the first meeting she explained that she would provide feedback to the Department in relation to the meetings. He asked how much of the meetings would be confidential and she explained to him that because the meetings were made as the result of orders made by the Court she was not able to guarantee confidentiality. The defendant responded, "Alright. I will talk to you about the sexual offences I have committed, but I will not talk to you about the sexual assault where I was the victim". Ms Sutton considered that the defendant was interested and engaged during their meetings. He discussed his offences with her, with the exception of the index offences, in respect of which he maintained that he was not guilty. In relation to the common assault of the 15 year-old girl, the defendant volunteered information that he had lured the girl into the derelict house in order to have sex with her, by force if necessary. He told Ms Sutton he had changed his mind when he saw the girl's fear. He offered this as evidence that he had already, at this stage, made the commitment not to sexually re-offend. 142 Each of Ms Sutton's therapeutic sessions with the defendant lasted around 90 minutes. She reported that: In contrast to the denial and minimisation described above, Mr Tillman appears to hold some remorse for the damage he has caused and states that he wants to know how he could have allowed himself to commit the sexual offences, given his own sexual victimisation as a child, to ensure that he does not re-offend. He has expressed a willingness to participate in treatment, as long as it is one on one. On the basis of the two meetings we have had it is difficult to assess how genuine Mr Tillman is in his desire to change. However, after the some initial posing early in the first session where he aired his grievances against the Department, his behaviour suggested he was engaged in the process and he has been willing to discuss issues relevant to future treatment. I cannot comment whether this reflects commitment to treatment or compliance with the restraints imposed on him by the Court.

[87]

150 I turn now to a consideration of whether the plaintiff has established to the high standard that the Act requires that the defendant is likely to commit a further serious sex offence if he is not kept under supervision. I have noted Mr Cook's principal submission, which is that this defendant, an articulate and intelligent man who is now 45 years of age and who has undertaken tertiary studies during his last period incarceration, cannot be assessed as likely to commit a further serious sex offence. The circumstance that the defendant's last offence was committed when he was 34 years of age and that he is now in middle age was prominent to Mr Cook's submission. 151 Dr Allnutt agreed that from about age 45 sexual recidivism for the sorts of offences of which the defendant has been convicted is on the decline. He was asked what, if any, impact the fact that the defendant had spent the last 10 years of his life in prison had on the prospects of him re-offending on release. He said that in answering this question it was necessary to fall back on his own subjective view because he was not aware of research on duration of incarceration as a factor associated with sexual recidivism. He went on to say this: I think it is probably best to fall back on age there. Age does seem to be a factor that does correlate with reducing recidivism risk over time. I think one could say that as one ages while one is incarcerated, the older one is at the time of release, that might relate to a reduction of future risk, especially over 40 or 45. I'd say over 45 onwards, from then on (T 98.24-30). 152 While Dr Allnutt provided support for the view that the defendant is now at an age where the likelihood of him committing sexual offences is reduced, I do not consider on the whole of the evidence that any significant discounting of his risk is to be made on this account. 153 Dr Lennings says that, as a general rule, offenders mature out of offending. He referred to studies which show that a person after entering his or her thirties tends to reduce their offending. He went on to explain that the research suggests that age is relevant although only gradually. Recidivism drops off faster for sex offenders who assault adults than it does for sex offenders who assault children (extra-familial and incest offenders). Extra-familial offenders show little effect for reduction in offending until after the 50th year. 154 Dr Lennings concluded that the defendant, who has a history of child and adult sexual targets in his offending pattern, is to be given little beneficial effect for his age at the present time. Dr Lennings' opinion is based on a review of the studies whereas Dr Allnutt said that he was not aware of the research in this area.

[90]

157 In assessing whether the defendant is likely to commit a further serious sex offence if he is not under supervision it is necessary to take into account his history of repeated sexual offences, particularly in the context of alcohol abuse. If the defendant is returned to the community without supervision the probability is that he will abuse alcohol. He has a history of very poor self-regulation in sexual matters. 158 The evidence is unclear as to whether the defendant is a paedophile. Some of the experts have commented on the fact that his victims have become younger over the years and that the two last offences were against children. It is to be borne in mind that the last offence in point of time was the assault of the 15 year-old girl, which appears on his criminal record as a non-sexual offence of violence and yet which plainly had a sexual motivation behind it. 159 It may be that the defendant is not a paedophile, but that he is a more versatile sexual offender who has a pattern of forcing sexual attention on any female who is at hand, particularly when he is intoxicated. He has a pattern of committing sexual offences within a relatively short period after his release from custody. 160 I accept that at an early stage in his present sentence the defendant was given to understand that he was not suitable for sex offender treatment programs because he maintained his denial of the index offences. There is material in a report prepared by Mr Bright, which is annexed to his affidavit (exhibit G), which provides support for this conclusion. 161 The defendant's belief that his denial of his index offences precluded him from any treatment program was one that he understood had consequences for him, including that he was not likely to be released on parole and his classification remained at a higher level than if he undertook a program (this at least is the tenor of a case note dated March 2004). Nonetheless, not later than November 2005 the defendant had been given to understand that he could undertake the CUBIT program while maintaining his innocence of the index offences. 162 The defendant's refusal to undertake the CUBIT program appears to be the result of a combination of factors. By November 2005 he had been refused parole and was facing the likelihood of completing his sentence full term or very close to it even if he undertook the CUBIT program. His exchange with David Bright, that I have set out above, suggests that he was somewhat hostile and resentful of the stance taken by the DCS with respect to sex offender treatment programs. 163 The defendant has not been recalcitrant in relation to rehabilitative programs generally. He has been an effective participant in drug and alcohol rehabilitation group sessions. His stated reason for not wishing to be housed in One Wing on the face of things does not sit well with the material in Mr Bright's report. Nonetheless, neither of the independent psychiatrists discounted that his reluctance to attend the CUBIT program may be associated with the trauma of the earlier assault. 164 The defendant has not been unwilling to undergo any form of treatment for his sexual offending. He has indicated a willingness to undergo one on one treatment. Narcisa Sutton assessed him favourably in this respect. There was evidence that offenders may resist treatment which they find confronting and seek out treatment options which are less challenging. This is likely to be true of the defendant. While I do not consider that the defendant is intransigent in his opposition to treatment for his admitted history of sexual offending it remains that at the present time the expert evidence points to the absence of treatment as a factor that makes him unlikely to identify triggers to sexual re-offending.

[95]

172 Jayson Ware's overall responsibility within the DCS includes management of the CUBIT and CORE programs and the FPS. Mr Ware is a psychologist with a background in the treatment of sexual offenders. 173 Mr Ware set out in his affidavit a program that would made available to the defendant should he be subjected to a continuing detention order. The Department could offer the defendant priority entry into the PREP (Pre-treatment) readiness program. The objective of this program is to increase offender motivation and reduce resistance towards treatment. It is not a treatment program in itself, but it is designed to prepare an offender for entry into the CUBIT or CORE programs. Mr Ware considers that a number of the defendant's reasons for refusing to complete treatment in the CUBIT program could be addressed in the motivational context of the PREP program. He notes that the Department has an Aboriginal Special Projects Officer attached to the sex offender programs. He says that this officer could work with the defendant to lessen his cultural concerns about the CUBIT program. 174 In Mr Ware's opinion a number of treatment options would be unsuitable for the defendant. Individual sex offender treatment delivered by a psychologist employed with the Department's sex offender program in his opinion is not a suitable option. 175 According to Mr Ware best practice standards are that high-intensity treatment programs for sex offenders should provide up to 300 hours of face-to-face therapeutic contact. The same standard suggests that there are significant advantages to group-based treatment which are not met by individual treatment. 176 Mr Ware said that there is very limited research available to suggest that individual treatment for sex offenders assessed to be a high-risk of re-offending is effective. 177 In this connection I note that Mr Bright in his affidavit states (at [39]): However, it should be noted that despite sound theoretical rationales for employing group therapy rather than individual 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. DiFazio, Abracam, and Looman (2001) reported a comparison of two groups of comparable high-risk sexual offenders who underwent either a combination of group and individual treatment or individual treatment alone. There is no significant difference in the rate of recidivism of the two groups.

[99]

It was put to him: Q. But there's no evidence to show that it has benefits over and above one-to-one counselling. Do you agree with that? A. I will agree to it provided that the one-to-one treatment was equivalent in terms of what was provided to the group format. In other words, just seeing a person by generally psychologist or psychiatrist would not be equivalent to a sex offender program. It needs to be a person who could provide specific sexual offending therapy. Q. Yes? A. To address that sexual offending behaviour. Q. Yes? A. The problem is that the degree of input from the therapist would have to be very frequent. Q. Well, is it? A. The answer to your question is are they equivalent? Q. Yes. A. It could be equivalent. It's possible but there's no study which clearly shows either way. Q. Alright. And is that partly because Corrective Services doesn't provide such treatment to persons in custody, that is, individual consultations with an appropriately qualified professional? Is that why we have no good basis of comparison? A. It's not only Corrective Services. It's the way the programs are run, you know, in the western world. People who have a high risk, who are a risk to the community tend to be in custody, and that's where high-intensity treatment is provided and that's clearly universal in the western world. Q. Yes? A. Yes. People of low risk, or people who had treatment and then being released in the community, attend programs which are called maintenance, perhaps, or low intensity programs, because they have benefited, hopefully, from the treatment. In other words, their risk has been reduced from the high to a lower risk and then when released in the community they don't require that intensity so, I mean, there have been people who were high-risk who have been in the community and, yes, they are treated in the community because there's no option. I mean, if they're in the community better treat them than provide nothing, because the risk to the community is obviously much higher if they don't go into a therapeutic program. Q. Yes, it is conceivable that it is possible to conceive of a regime for Mr Tillman, were he released on a supervision order, which would be a combination of monitoring, reporting, and intensive counselling, which would be likely to reduce his level of risk do you agree with that? A. Well, I'm not sure. Well, I'm not sure what is possible or what is not possible because it really depends … Q. From a resources point of view? A. Yes. Q. Right. Forget about that for the moment, but it would not be difficulty for you, as a professional specialising in that area, to conceive of a regime which would reduce whatever risk he may pose to the public? A. Well, it would only be reduced after he has benefited from treatment, so during the initial stages he would remain high risk. Obviously, if he engaged and is motivated and complied with treatment, after a period of six, 12 months, the benefits of that treatment hopefully would kick in and that would reduce his risk.

[103]

184 The defendant was at liberty following the expiration of his sentence of imprisonment between 18 April and his arrest on 3 May pursuant to the order of the Court of Appeal. During this period he was closely monitored by the Probation and Parole service. He attended interviews with Dr Allnutt and Professor Greenberg. He attended four counselling sessions with Narcisa Sutton. He was visited at the hostel by his probation officer. He had regular telephone contact with Mr Fahs of the DCS' Special Visitation Service (the SVS). 185 It is not suggested that the defendant breached the terms of the orders imposed by Hoeben J. Nonetheless, the plaintiff submits that his compliance with supervision demonstrated that he was selective in his disclosures to the SVS. This is because on 21 April 2007 he had been instructed by Ms Fahs not to go near the Westfield shopping centre at Parramatta. This advice was renewed in the course of the telephone discussion between Ms Fahs and the defendant on 22 April. However, on that day he was followed into the Westfield complex by a member of the surveillance team. 186 A surveillance operative stated that he had seen the defendant walk from the hostel in company with another male resident of the hostel and enter a shoe shop situated in Church Street, Parramatta. Later, he saw the defendant enter the Parramatta Railway Station via the stairs on Darcy Street, still in the company of the other male resident. He walked into a newsagency located inside the Parramatta Westfield shopping centre, where he purchased a newspaper. He left the newsagency and walked along a concourse inside Westfield, towards the food court. Before reaching the food court he turned left and exited through a fire exit door. In evidence, the defendant was cross-examined about the suggestion that he had gone to the Westfield shopping centre. He said that if he had gone into the Westfield shopping centre it was a mistake. He thought the Westfield shopping centre was located on the other side of the road and he did not recall going into it. I accepted him. 187 There were two other incidents which the plaintiff relied on in support of the submission as to the defendant's asserted relatively poor level of cooperation with supervision. I do not propose to detail them. In my view neither is a matter of great moment. I consider that the evidence establishes that over the short interval that he was at liberty on the supervision order the defendant complied with it in a satisfactory manner. However, the period of his release under supervision was too short to draw any meaningful conclusion concerning the future. 188 The Act provides that a detention order may be made if and only if the Court is satisfied to a high degree of probability that adequate supervision will not be provided by an extended supervision order. 189 Dr Allnutt's evidence is that the prominent risk factors for this defendant are alcohol and access [to victims]. Stringent conditions could be placed on the defendant including that he not consume alcohol and that he submit to random breath and urine analysis. These may lessen the risk of re-offending in the context of alcohol abuse. 190 The defendant's sexual abuse of children has occurred in a domestic context. Conditions of an extended supervision order could be framed to ensure that he does not reside in premises with a child under the age of sixteen years. 191 It remains that the defendant has in the past targeted teenage girls; the run-away girl who sought his protection, the 15-year-old girl at the social function in 1983 and the 15-year-old girl whom he encouraged to accompany him to the derelict house. He was on bail charged with the sexual offences against his nine year-old stepdaughter at the time of this last offence. It occurred in daylight hours. He struck up an acquaintance with the victim in a shopping centre. 192 The evidence points to the defendant having long-standing deviant sexual behaviours. I am satisfied that treatment requires the defendant to undergo an intensive program involving regular prolonged contact with a therapist trained in the treatment of sexual offenders and that there is no suitable program available in the community. 193 In light of the defendant's history and taking into account Professor Greenberg's evidence that I have set out at [180] above, I am satisfied to a high degree of probability not only that the defendant is likely to commit a further serious sex offence if he is not kept under supervision, but also that adequate supervision will not be provided by an extended supervision order. 194 In the plaintiff's submission, the appropriate course is to make a detention order for the maximum length that the Act allows and to leave open that the defendant may apply under s 19(1) of the Act to vary or revoke the order in the event that his circumstances change. I am not persuaded that is the approach to be taken. 195 A continuing detention order has dire consequences for the defendant. It is made because of the need to protect the community. The defendant's unwillingness to undertake the CUBIT program has been for reasons which include, on the estimate of each of the independent psychiatrists, include some measure of anticipated psychological discomfort arising out of his own assault in custody many years ago. It may be that this can be overcome and that he is able to undertake the CUBIT program with appropriate support from staff within the DCS. In this event, his continued detention after completion of the program may not be justified. It is troubling that at the present time no suitable treatment is available in the community. Given that the defendant is willing to engage in some form of treatment, his detention pursuant to the Act should not extend beyond 12 months without further order of the Court.

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