Psychiatric and psychological evidence
37 Two psychiatrists Dr Jeremy O'Dea and Dr Stephen Allnutt provided reports to the Court pursuant to my orders. The defendant participated in two interviews with Dr Allnutt and three interviews with Dr O'Dea. It appears that he was co-operative and attentive during the interviews. Neither of the psychiatrists diagnosed the defendant as suffering from a major mental illness. Both considered that he could be categorised as having an antisocial personality disorder. Neither psychiatrist diagnosed a paraphilia on the basis of the defendant's self report. In Dr Allnutt's opinion, the defendant falls into a "a high-risk group for any form of sexual recidivism." Dr O'Dea was of the opinion that the defendant "would be considered as having a significantly high risk of engaging in further sex offending behaviours in the longer term".
38 Accounts of his sexual offending were provided by the defendant to the psychiatrists. He explained to Dr Allnutt, as a motive for the first sexual offence, that his girlfriend had been raped "by a bloke and his bitch over four days." He was very angry about what had happened to his girlfriend and his offence was an attempt to "square-up". He thought the victim that he had raped was the woman who had hurt his girlfriend. He found out afterwards that she was not. As a consequence he was shattered. As to the second sexual offence, he said that after his release on parole, the police had set him up. He was then wrongfully arrested for the further sexual offence to which he pleaded not guilty. He said had had no knowledge of the offences and could tell nothing about them.
39 When he was subsequently released on parole, he was out for 12 days and then re-arrested for the index offence. He told Dr Allnutt that in the 12 days he had met a woman and established a friendship with her. This person, he said, told him she knew another woman who might know a person AW. AW was a friend that he wanted to get in contact with. He said that the woman that he met took him to AL (the victim). AL told him that she knew AW. He said he was about to leave AL's house when she noticed his hunting knife. At that point he happened to have a "12 inch hunting knife" with him as his intention was to have it chemically sharpened. She noticed it because he had it on him in a sheath on his hip. Whilst she was looking at the blade, she cut her finger. She fixed the cut. The woman who had taken him to visit AL had a conversation with him. This woman had told him that AL was a "part-time hooker". She suggested he stay behind and have sex with AL with his woman friend remaining. In giving him "a head job" AL bit him on the penis to which he reacted by hitting her. As this was happening, the woman that took him then said she had to leave. He had an argument with AL. The police were called by neighbours and he was arrested. The defendant explained that while he accepted he had sex with the victim, he had not been charged correctly and the sex was consensual. He now felt a strong need to find the woman who had taken him to AL's house, as she was the sole witness that could clear his name. It appears that the defendant intends to make an application under s 474 of the Crimes Act 1900.
40 The defendant's account to Dr O'Dea of the offences was substantially in the same terms.
41 Dr Allnutt approached the assessment of the defendant's risk of recidivism by adopting both a clinical and actuarial approach. In his clinical assessment he was guided by the factors identified by Karl Hanson and Morton-Bourgon and the Sexual Violence Risk-20, a clinical risk assessment tool.
42 The factors associated with increased risk of recidivism include, Dr Allnutt states, the three episodes of sexual offending which have occurred over a period of many years with evidence for recidivism after a relatively short period of time. He did not diagnose a particular paraphilia on the defendant's self report but believed that the defendant should be regarded as having an underlying tendency to sexually deviant behaviour and interest. He considers that the defendant would be categorised as having an antisocial personality disorder. The defendant, he states, manifests a tendency to impulsive aggressive behaviour and appears to have difficulty with self-regulation.
43 Factors such as lack of victim empathy, denial of a sexual crime and minimising culpability, low motivation for treatment, Dr Allnut observes, have not been shown to predict sexual recidivism. During his oral evidence, he explained that they are risk factors but with a low correlation. They are factors, he said, that one would place less weight on than others. Risk factors Dr Allnutt described as being "red flags" that indicate danger. The more risk factors there are the greater the risk.
44 Whilst Dr Allnutt was giving evidence I raised with him the defendant's account of the third serious sexual offence during which he had claimed that the victim consented to sexual intercourse. I asked whether that account had any impact on his assessment of the defendant so far as the likelihood of further offending is concerned. Dr Allnutt replied T 154 -155 L 48-57, L 1-5:
" It would have an impact on my view as to whether I could engage him in treatment, in other words I need what I was saying earlier, as a practitioner one requires a certain degree of reliability with regard to information that he provides to me and that would suggest to me that I might not be able to rely on his self report which would make treatment or therapy or whatever it is that I engage with him difficult and cause me some anxiety. But whether it's a factor that I would say predicts recidivism I would say it is a lower correlation than other factors.
Q. But it would still be a factor?
A. It's certainly something I would factor in but it's relative. I suppose a better way of stating is I place less weight on it than other factors ."
45 In answer to a similar question, Dr O'Dea replied:
" In general, from a clinical perspective, the answer is yes. There are different groups of sex offenders with different problems in which the issue of their inability to understand consent issues does point to a greater risk of reoffending. I point to people with limited social and sexual skills and intellectual disabilities as a group. Certainly that is an issue that can point to further sex offending. But I am not aware of any specific literature that has followed up people with that attribute and identified them as a group that will reoffend at a higher rate ." (T97 L29-39)
46 In his actuarial assessment, Dr Allnutt was guided by the Static-99, which is an instrument designed for the prediction of sexual recidivism in sex offenders. Dr Allnutt explained that any recidivism estimates provided by the Static-99 are group estimates and cannot be applied to the individual. Such estimates can only act as a guide. He states:
" Overall the Static-99 as an actuarial instrument can act as a guide but should be cautiously and judiciously applied to the individual ."
47 The defendant had he been a subject in the study on which the Static-99 was based would have fallen, Dr Allnutt states, into the group of subjects who were categorised as high-risk for future sexual recidivism. Of individuals in the original study on which the Static-99 was based, of those who scored 6 or greater, 39 per cent sexually re-offended in five years, 45 per cent in ten years and 52 per cent in 15 years. This should be compared, Dr Allnutt states, to the overall average of the group on which the Static-99 is based which was 18 per cent in five years, 22 per cent in ten years and 26 per cent in 15 years. Dr Allnutt pointed out that these sexual offences involved any sexual offence. He cautioned the Court not to apply these statistics to the defendant in determining the legal requirement of being satisfied to a high degree under s 17 of the Act. As he had mentioned the Static-99 can only act as a guide.
48 He concludes:
" Overall having regard to both clinical and actuarial assessments and considering all the information, in my professional opinion, the defendant would fall into a high-risk group for any form of sexual recidivism. The issue here, however, is whether or not the defendant falls into a high-risk group with regard to 'serious sexual offending' and sexual offending in general. Having regard [to] his history and considering the nature of his prior offences, it appears that the defendant's prior offences have involved a similar modus operandi and the facts are that they occurred on a number of occasions over time. Based on this, in my view it would be reasonable to be of the opinion that if he re-offended sexually, the sexual offences would most likely be of a similar nature or with similar intent to commit a sexual offence of the similar nature, that is a 'serious sexual offence'. Should he sexually re-offend he would fall into a group of offenders who pose greater risk to adult females rather than children ."
49 Whether or not he, as an individual will or will not in fact reoffend in absolute terms, Dr Allnutt comments, cannot be stated with reasonable certainty. This is because, he explains, placing a person in a particular risk group denotes a probability and not a certainty. Dr Allnutt agreed in his oral evidence that psychiatrists are unable to predict future serious sex offending with sufficient accuracy to meet the requirements of the Act: T 145 L9-13.
50 Although he did not diagnose the defendant as suffering from a major psychiatric illness, Dr O'Dea noted in his report the defendant's evident ongoing problems with anger and depression. He comments that in addition to his reported score on the Psychopathy Checklist Revised (PCL-R) meeting the requirements sufficient to conclude that he could be regarded as having the personality disorder of psychopathy as conceptualised by the PCL-R, he would also meet the criteria for the psychiatric diagnosis of personality disorder with antisocial and narcissistic traits. Dr O'Dea was there referring to the PCL-R that had been conducted by Dr Baron about which I will expand upon at a later stage.
51 Dr O'Dea was of the view that the defendant's apparently sustained level of anger over an extended period of years in a variety of settings in custody may point to more specific problems with his moods which may respond to treatment with mood stabilising medication and/or antipsychotic medication in addition to ongoing psychotherapy, including specific anger management. He did not diagnose the defendant as suffering from a paraphilia or other sexual deviance on the defendant's self report. Dr O'Dea in his oral evidence said: T 99 L 22-31.
" The fact that I was not able to elicit from Mr Wilde any sexual deviance was one thing, but the offending behaviour in and of itself points to sexual deviance that I would want to be focussing on as I mention in the Opinion section.
This particular sexual deviance is sexual sadism and if that could be identified and treated, rather than relying on psychological treatment, would be perhaps better targeted by biological treatments. "
52 In his report, Dr O'Dea concludes:
" From a full clinical psychiatric risk assessment and risk management perspective, and as judged by actuarial risk assessment instruments (such as the STATIC-99 - the widely used actuarial risk assessment instrument aimed at estimating future risk of recidivism of sex offenders), Mr Wilde would be considered as having a significantly high risk of engaging in further sex offending behaviours in the longer term."
53 Dr O'Dea observed that the margins of error for risk estimates using the Static-99 are so high as to significantly reduce the appropriateness of relying on the defendant's high score (of 9/12) alone to make decisions about release into the community. Of relevance, he states, is the fact that the Static-99 measures the risk of an individual engaging in a further sexual offence rather than a further serious sex offence as defined in the Act.
54 Dr O'Dea during his oral evidence said that:
" Static-99 looks at general sex offending rather than specific serious offending set out in the legislation we are addressing. And also the clinical risk assessment and management that I refer to this via a formal psychiatric assessment, also doesn't really have the power to hone down any specific levels of severity of sex offending. "
T 92 L 22-27.
55 He further explained that another issue about the Static-99 which was emerging this year was about:
"C onfidence intervals, in the statistical measurements that render it very inexact in an individual case. " T 92 L 54-55.
56 He comments that the defendant's specific risk factors include his history of past sexual offending behaviours, in particular within days or months of release from custody in the past, and his diagnosis of personality disorder. In his oral evidence, Dr O'Dea said
" I came way thinking t hat the two main risk factors for him were the offences that he engaged in and also his personality disorde r."
T 90 L 56 58.
57 Dr O'Dea comments exhibit B at [57]:
" Although Mr Wilde's risk of engaging in further sex offending behaviours would be considered significantly high, I do not consider that the current evidence regarding the assessment of risk is sufficiently advanced to predict with sufficient accuracy Mr Wilde's precise likelihood of engaging in further sex offending behaviours on release into the community ."
58 Dr O'Dea explained during his oral evidence that he was not sure that there are any clear guidelines to be precise about serious sex offenders and made further reference to the limitations in the Static-99. He was referring to the science of risk assessment: T 92, L38-51, T 96 L 15-19.
59 Dr Allnutt considered that whatever order the court makes the defendant should pursue treatment to address:
(i) his sexual interests and deviant sexual arousal pattern;
(ii) the antecedents, triggers and circumstances of his prior offending;
(iii) developing strategies to reduce exposure to high-risk situations;
(iv) develop anger management skills;
(v) pursuing a more pro-social lifestyle, to this end, assistance in engaging in a pro-social group, stable accommodation and stable employment.
60 Dr O'Dea was also of the opinion that the defendant should engage in psycho-therapeutic treatment. He said that the defendant "should take the opportunity to explore in more detail with a suitably qualified and experienced forensic psychiatrist or psychologist 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 further sex offending behaviours in the long term".
61 There is in evidence an affidavit sworn by Graham Rendell on 4 October 2007. Mr Rendell is a senior psychologist with the Department of Corrective Services (the Department) and the regional supervisor for sex offender programs in southern New South Wales. He interviewed the defendant on 25 May 2007 for the purpose of preparing a risk assessment report. Mr Rendell's affidavit and his report dated 13 June 2007 are exhibit GR1. As Mr Rendell is in hospital, he was unable to give evidence during the current proceedings. A transcript of Mr Rendell's evidence given on 1 November 2007 is exhibit E. The defendant's potential for reoffending was assessed by reference to both his static risk factors, using the Static-99 instrument and his dynamic risk factors. Using the Static-99, Mr Rendell obtained a score of 9 for the defendant which placed him in the high risk group for reoffending. Since the recidivism estimates provided by the Static-99 are group estimates, the score does not directly correspond to the recidivism risk of an individual offender, Mr Rendell states, nor does it provide any indication about whether an offender will be in the group of men who will reoffend or the group who will not reoffend. Into which of the two groups a particular individual offender will fall depends on an assessment of the dynamic risk factors.
62 In a report dated 5 December 2007, Dr Olav Nielssen, a psychiatrist, comments on the limitations of the Static-99 as a tool to determine the likelihood of reoffending. He says that the main limitation of the Static-99 is that it cannot say whether an individual with a given score will fall into the proportion of offenders who will commit another offence. The best it is able to predict is that 45 per cent of offenders classified as high risk will commit another offence of any kind within ten years. This reflects the relatively low rate, he states, of recidivism of sex offenders when compared to other offenders in New South Wales, of whom 47 per cent return to prison within two years of release. Another limitation of the Static-99 is that it is based on fixed historical factors which become increasingly inaccurate over time.
63 It is evident that the Static-99 is a predictive tool of limited value. The defendant's high score on the Static-99 does not by itself establish that the defendant is likely to commit a further serious sex offence. I take his high score into account as a guide in conjunction with the assessments made of him by the psychiatrists and psychologists founded upon his personal risk factors.
64 Mr Rendell identified the defendant's dynamic risk factors as being:
· Intimacy deficits. He opined that by and large the defendant appears to have significant intimacy deficits. Throughout the assessment process, he noted that the defendant made no mention of any desire to enter into another sexual relationship, or indicated any awareness that the future absence of such a relationship may be problematic.
· Social influences. Mr Rendell noted that on the whole, the defendant appears to have had few if any non-professional non-family positive social influences in his life, together with a limited understanding and awareness of how he will need to (and why) establish positive social influences upon release.
· Distorted attitudes. The defendant, Mr Rendell comments, presents as a man who is ruled by a robust, all encompassing, total self-referential belief system. He is a man of strong conviction and to his mind, of integrity and justice. However, he is apparently the only arbiter of this belief system, and it has little place or reference for, or to others, community convention, social legibility, or common morality.
· General self-regulation. The defendant appears to have significant problems in general self-regulatory functioning. While the defendant seems to possess some degree of emotional constraint and self-regulation when he deems it is essential, he also appears to have experienced over his life a number of situations, relationships and conflicts, which may have compromised this capacity.
· Sexual self-regulation. The defendant's deficiency in 'sexual self-regulation' are evidenced by the defendant's sexual offences all of which Mr Rendell notes had similar themes, in that the crimes appeared premeditated, the victims were targeted, they were alone and there was physical coercion in the commission.
65 In his report, Mr Rendell reviews the defendant's attitude and amenability to treatment. He notes that the defendant has not participated in any offence specific treatment whilst incarcerated. Prior to the commencement of the Custody Based Intensive Treatment (CUBIT) Program in January 1999, the Department of Corrective Services did not have a sex offender treatment program, Mr Rendell comments, which complied with international 'best practice' standards. During his interview with the defendant, Mr Rendell canvassed with him the programs offered at CUBIT. Mr Rendell reports that the defendant responded by stating forthrightly with no ambiguity:
" No I won't do it, not in gaol…legally I can't because I would have to admit to crimes I didn't commit as it will impact my s 474 ."