Subjective matters
7 The applicant had a troubled upbringing. He was born in Sydney but adopted at birth, although he was not told this until he was in high school. He has no information about his biological parents. He had a poor relationship with his adopted mother who was physically aggressive towards him. He had a better relationship with his adopted father but he died in 1995. His adopted parents had twins, only one of whom survived and who suffers from an intellectual disability.
8 The applicant left school in Year 10 and spent 12 months in the Royal Australian Navy as an apprentice fitter and turner. However, he was chronically unable to organise himself and constantly came under notice for failing dress requirements and not keeping timings. He was discharged as unsuitable.
9 Between 1991 and 1993 he worked in numerous jobs as a factory hand or a labourer. He spent a period of time living as a homeless person. He could not settle down and had few friends. He then returned to live with his adopted family. From about 1993 he worked in the hospitality industry, usually pizza outlets. He socialised at work and his alcohol and marijuana consumption increased.
10 The applicant is a single man but prior to the relevant offences he was convicted of the offence of inflicting actual bodily harm with intent to have sexual intercourse. He was sentenced for this offence on 28 November 2001 to a non-parole period of two years with an overall sentence of three years and nine months. He was released to parole on 9 December 2002 and accordingly, was on parole at the time of the commission of the present offences.
11 The evidence before the sentencing judge was that the applicant has complied with the directions of the Probation Service. Although he commenced he did not complete the community based Sex Offender Program. Apparently, the arrangements for attending at the Program conflicted with his opportunity for employment. Instead he was referred to Dr Neilssen, although in retrospect the applicant believes he should have focused on the Program and completed it.
12 Dr Neilssen reported that the applicant had initially been referred to him prior to sentence for his previous offence, which was committed in part because of the effects of alcohol and his depressed state. He was assessed as being a little odd and was suspected at that time of having an underlying mental illness. When interviewed by Dr Neilssen in October 2003 he did not report symptoms of mental illness. However, the applicant presented in a way that was typical of someone with damage to the frontal lobes, with slightly eccentric appearance and a wide eyed stare.
13 Mr Gregory Fathers, a psychologist, observed that the bizarre aspects of the applicant's behaviour were possibly related to organic brain dysfunction of the frontal lobe. He noted a history of possible skull fracture when the applicant was ten years old. He reported that prior to his arrest on the present matters, the applicant was living an isolated life with no family support and limited social skills. He was not eating properly, had a disturbed sleep pattern and consumed alcohol and marijuana in a binge on his days off work. He said that the applicant had significant problems with thinking and concentration, at times accompanied by prominent distress and dysphoria. He felt withdrawn and socially isolated. His abuse of alcohol and other substances had played a role in helping him distance himself from the threat of rejection and control his anxiety.
14 The applicant told Dr Westmore, a psychiatrist, that he felt his behaviour was due to the fact that he spent a long time as a single man and spent the last ten years of his life being rejected by girls. He became distressed when discussing his offending behaviour and his concerns about not understanding why he behaves in such a way. Dr Westmore observed that the most salient aspect of the applicant's history is the absence of any significant long term relationship and relatively few sexual contacts. He said that it was likely that repeated failures may have resulted in low levels of confidence from a personal and sexual perspective.
15 Both Dr Westmore and Mr Fathers were of the view that the applicant needed on-going treatment. Dr Westmore said that the applicant did not have an anti-social personality disorder, but that the repeated nature of his offending was of major concern, as was the fact that he had not had any therapy. He deferred an opinion about his intelligence but stated that he urgently needed long term extensive therapy. Mr Fathers said that the applicant's lack of personal and social success became fixated on his lack of perceived sexual adequacy and lack of personal attractiveness. He lacked social skills and judgment, was immature, and had an obvious social handicap because of his odd manner of presentation. He said that he needed on going assessment and treatment and that any intervention should have a broad approach, aimed initially at his sexual fantasies.
16 The applicant gave evidence that he had been on protection in the MRRC since his arrest on 8 June 2004 but that late in 2004 after an incident he was moved into limited association protection. He detailed the consequential restriction on his liberty, in particular only being allowed out of his cell three hours per day. He said that he had seen a couple of psychologists but that there was no work or courses available to him. He expressed remorse, saying he felt "terribly bad" about what had happened, particularly in relation to the 12 year old victim.
17 The applicant gave evidence that he appreciated that he had an alcohol problem which was affecting his life. He also said he wanted to enter the Sex Offender Program at Long Bay, known as the CUBIT program, so that he would not re-offend. He was unable to undertake that course during his previous period of imprisonment.