DECISION OF THE PRIMARY JUDGE
8 At pars.[18]-[31], [46]-[58] and [63]-[115] of the judgment, the primary judge carefully reviewed evidence, including evidence by Mr. Rendell, senior psychologist, Sex Offenders Program; by Ms. Fahs, co-ordinator of the Special Visitation Group within the Department of Corrective Services; by four psychiatrists; by a psychologist Ms. Howell; and by a relative of the appellant. We adopt this review as an accurate and comprehensive account of this evidence.
9 The primary judge referred to the requirements of s.17(3) at par.[43]:
43 Section 17(3) is a key provision. As Mr Arnott, SC, who appeared on behalf of the plaintiff, with respect, correctly submitted, the burden is on the plaintiff to satisfy the Court "… to a high degree of probability …" that (Plaintiff's Outline of Submissions, paragraph 37):-
(a) the offender is likely to commit a further serious sex offence if he or she is not kept under supervision; and
(b) adequate supervision will not be provided by an extended supervision order.
10 He noted at par.[60]-[62] that s.17(3) requires the Court to consider two elements; and he found that the medical evidence established the first of them, namely that there was a high risk that the appellant was likely to commit a further serious sexual offence if not kept under supervision. The primary judge stated that the critical question was whether adequate supervision will or will not be provided by an extended supervision order made under the Act.
11 The primary judge accepted that the test under s.17(3) was as stated by McClellan CJ at CL in Attorney-General for the State of New South Wales v. Winters [2007] NSWSC 1071 at [50] as follows:
… As the authorities show, the meaning of the word 'likely' can vary significantly depending on its context. However, having regard to the purpose and effect of the legislation, notwithstanding my tentative view in Gallagher , in my judgment, in the Act, 'likely' means 'more likely than not' and it is that test which must be applied in s.9 and s.17. For relevant purposes, the Court must be satisfied to a high degree of probability that it is more likely than not that the offender will commit a further serious sex offence. It follows that the defendant's argument that the chance of re-offending must be significantly higher than 50% must also be rejected.
12 The primary judge then gave the following reasons for making the orders he did:
133 Dr Nielssen also observed that he considered that an appropriate community treatment plan implemented as a condition of a supervision order would reduce his risk of offending to an acceptable level "bearing in mind that the prediction of behaviour is an inexact science" .
134 The question as to whether or not the plaintiff has established the second limb of s.17(3) is, as already indicated, fundamental to the determination required to be made. In doing so, of course, the Court is required to have regard to the matters set forth in s.17(4) (which includes "(a) the safety of the community" ) and to any other matter that the Court considers relevant.
135 I have had particular regard in relation to the issues concerning the second limb of s.17(3) both to the terms of the proposed risk management plan (Exhibit 2) and to the evidence given, in particular, by Dr Ellis, Mr Rendell and Ms Howell in relation to the adequacy of that proposed plan.
136 The terms of the proposed extended supervision order as set out in Exhibit 2 contain separate provisions dealing with the following subject matters:-
(a) Monitoring, communication and accessing information in relation to the defendant's progress under an extended supervision order.
(b) Provisions concerning proposed treatment of the defendant.
(c) Restrictions in terms of accommodation and other matters.
137 Although the provisions of s.17(3) do not employ the terms "risk" or "risk management" , plainly the section is directed towards an assessment being made by the Court as to the risk of an offender committing a further serious sex offence in terms, as McClellan CJ at CL in Winters (supra) stated, namely, whether it is more likely than not that an offender would commit such a further offence. In determining what constitutes "adequate supervision" under a proposed extended supervision order, the Court is required to have regard to the nature of the supervision and of the controls and restrictions that would operate under it in order to determine its adequacy to meet the risk referred to in the first limb of s.17(3).
138 In Attorney-General for the State of New South Wales v Quinn [2007] NSWSC 456 at [30], I referred to the ordinary meaning of the word "adequate" as including "commensurate in fitness, sufficient, satisfactory" : Shorter Oxford English Dictionary, Fifth Edition.
139 It is clear that the terms of an extended supervision order must be such as to provide supervision that is "commensurate in fitness, sufficient or satisfactory" , to the assessed risk in terms of the first limb of s.17(3). In this respect, "adequate supervision" would, in my opinion, require such "supervision" as will be adequate, in the above sense, to reduce the risk of the defendant committing a further serious sex offence so that, by reason of such supervision, it is less likely than not that he will re-offend in that regard.
140 Accordingly, s.17(3) in the present proceedings requires close attention be given to the proposed risk management plan and to the opinions that have been expressed by the expert witnesses to whom I have already referred.
141 The subject of risk management is, of course, one that operates in a large number of areas of human activity. The risk in many situations (eg, industrial environments) is the risk of careless or inadvertent or negligent conduct that can give rise to or cause damage or harm.
142 In the context of the Act, the risk is a risk of an offender wilfully or deliberately engaging in activities that would constitute a "serious sex offence" . The proposed management plan in Exhibit 2, when analysed, can be said to provide three levels of defence in the nature of what might be termed as "defence barriers" , namely:-
(a) The first defence barrier
• Supervision by the Probation and Parole Service.
• Communication with officers of that Service and other relevant personnel.
• Monitoring of the defendant's activities and conduct.
(b) The second defence barrier
• Restrictions as to accommodation.
• Restriction upon specific activities and movement.
(c) The third defence barrier
• Specialist medical (psychiatric) treatment (including the administration of anti-depressant medication and potentially at a future point in time, anti-libidinal medication).
• Psychological counselling, treatment and support.
143 It is evidence that each of the controls to be provided by the proposed Risk Management Plan is crucial. Given that, if released, the defendant would be working for limited hours early in the morning of each day, there would be many hours in which he is otherwise not specifically engaged in programmed work. The control to be provided by medical treatment, in particular, medication (what I have termed the "third defence barrier" ), I consider, in the light of the evidence concerning the nature of the defendant's disorders and the factors underlying them, to be fundamental to the other proposed controls. In the event that prescribed medication is trialled and is established as producing beneficial effects in line with the evidence of Dr Ellis (including, in particular, the suppression of sexual drive), then the level of risk to the community would, of course, be commensurately reduced. Similarly, treatment by way of psychiatric and psychological counselling directed to enhancing what Dr Allnutt has described as the defendant's "limited repertoire of coping when it came to dealing with stress" , in conjunction with the medical treatment, hopefully will also operate to reduce the risk or likelihood of re-offending by increasing the defendant's insight, capacity and coping skills.
144 Accordingly the objective is that a combination of psychiatric and psychological treatment and support will, at some point, result in self-regulated control, given, particularly, Dr Allnutt's statement that as at the time of his examination on 12 July 2007, his opinion was that he did not believe "… at this stage, he has developed adequate mechanisms of coping with dysphoric moods in a more constructive manner …" . The significance of his dysphoric moods to past offending has been discussed above.
145 The evidence, in my opinion, plainly establishes that, in the event that Dr Ellis and Ms Howell at a future point in time are in a position to have monitored and assessed the effect on the defendant of both medical (psychiatric) and psychological treatment as having adequately addressed the factors subjacent to the defendant's personality disorder, then the treatment regime, together with what I have referred to as the first and second lines or barriers of defence, may well be seen to be adequate to bring the risk or likelihood of re-offending down to a level that would enable supervision under an extended supervision order to be considered "adequate supervision" .
146 The position that presently operates, on the evidence, is that, whilst treatment by medication is, as I have earlier stated, fundamental to the proposed plan, it has not, by reason of a series of circumstances, been trialled for a sufficiently long period of time to enable Dr Ellis to determine what effect it will have upon the defendant, and whether there is a need for an adjustment or change in medical treatment. Similarly, Ms Howell has only recently commenced treatment and has not as yet had the opportunity of developing treatment to a level whereby she is in a position to assess the nature and extent of any beneficial effects which she considers likely to result form such treatment.
147 In written and oral submissions, it was contended on behalf of the defendant that, in all the circumstances, adequate supervision is available upon the release of the defendant. In his written submissions, Mr Dalton SC, for the defendant, addressed the issues concerning the management of the defendant's level of risk (paragraphs 22 to 25). He submitted that "adequate supervision" should be interpreted as adequate available supervision to reduce the risk below a high degree of probability of likelihood to re-offend. I have earlier indicated that adequate supervision, in my opinion, must be such that in the case of a high risk serious sex offender, an extended supervision order is required to be such that it would no longer be "likely" (as interpreted by McClellan CJ at CL in Winters (supra)) that the defendant would commit a further serious sex offence. Mr Dalton relied upon the evidence of Dr Allnutt, Dr O'Dea and Mr Rendell as well as Dr Ellis in contending that "the overwhelming balance of the evidence is that the proposed management plan for a period of five years is adequate to appropriately manage his level of risk in the context of s.17(3) …" (paragraph 22(a) of the defendant's written submission).
148 Mr Dalton also emphasised the support, which the defendant's family would provide and the fact that the defendant had no history of breach of parole orders or extended supervision orders.
149 Whilst Dr Ellis, Mr Rendell and Ms Howell have given evidence, as set out earlier in this judgment (see paragraphs [91], [92], [95] and [111]) that they consider the proposed plan to be adequate to manage the defendant in the community, it would be wrong to treat the answers they gave as to the adequacy of the proposed program divorced or separated from their underlying analyses and diagnoses made of paraphilia and personality disorder, or of the need for specific medical and psychological treatment to be implemented and taken to a stage that will provide the defendant with the necessary capacity and coping skills. The evidence is that it will take some time before the effects of the medication are capable of being assessed and reviewed and, as necessary, modified or adjusted to produce the necessary outcome of reducing the assessed likelihood of the defendant committing a further serious sex offence.
150 Dr Ellis' evidence was to the effect that he has not yet been able to make such an assessment and, as stated above, Ms Howell has only recently embarked upon a treatment program. It will require time for her to exercise her professional expertise in order to develop those matters considered necessary for the defendant to develop the required self-regulation.
151 The difficult matter of risk prediction, emphasised by the expert witnesses, is one that requires an assessment of all the evidence, taking into account the practical operation of an extended supervision order having regard to the particular offender. That practical approach must require some regard to the fact that, although the defendant has not displayed sexually deviant behaviour whilst in prison, the more stimulating environment of the general community for the defendant, who presently lacks the capacity for self-regulation, if released, is a factor to be brought into account in the assessment to be made under s.17(3).
152 Mr Dalton referred to the fact that Mr Arnott did not put to the experts that they were incorrect in the specific opinions they expressed as to the adequacy of the proposed plan. It is to be remembered that, in this Court, determining an application under the Act, it is required to examine all the evidence (including the opinions expressed by the expert witnesses to which I have specifically referred above). Ultimately, it is for the Court to determine what evidence it ought to accept. A trial judge is not bound to accept expert opinion evidence, particularly where it is evidence on an ultimate issue: Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 at [89] per Heydon JA, as his Honour then was.
153 In the course of his submissions, Mr Dalton adverted to the judgment of McClellan CJ at CL in Winters (supra). The Chief Judge, in that case, referred to the evidence, in particular, of Mr Rendell and expressed confidence in the proposed management plan. His Honour also referred (paragraph 143) to the strict conditions proposed including conditions for monitoring, counselling and the "continuing administration of anti-libidinal medication will, based on past experience, significantly reduce his sex drive. Of course, his continuing ability to accept this form of medication remains uncertain" .
154 In the judgment (at 144), McClellan CJ at CL also observed:-
"But for two matters, I would have been satisfied that adequate supervision could be provided by an extended supervision order. In the words of the statute, the consequence of the two problems is that I cannot be satisfied that adequate supervision could be provided by an extended supervision order."
155 It is important to note that his Honour's observations are to be construed in light of the evidence adduced in Winters . The Chief Judge recorded (paragraph 51) that, whereas on occasions the defendant in that case had exhibited behaviour consistent with a continuing tendency to commit sexual offences, "… he was, for a time, administered anti-libidinal medication during which there were no reports of unsatisfactory conduct. He chose not to continue with the medication because of side effects …" .
156 Accordingly, in Winters , there had been a trial of anti-libidinal medication from which it was possible to assess that the defendant's tendency in that case to commit sexual offences had been attenuated. In the present case, there has, of course, been no trialling of either anti-depressant or anti-libidinal medication. Whether they are suitable medications for the defendant remains to be seen. It is, of course, hoped that they will be suitable and that other treatment over time will enhance the defendant's capacity.
Determining the duration of a continuing detention order
157 The maximum period of a continuing detention order is five years: s.18(1)(b ). In determining in a particular case the appropriate period for such an order, the Court, in my opinion, should seek to identify those facts or matters that should guide its determination.
158 In the present case, the defendant will, at least in the short term, require both medical and psychological treatment and potentially may benefit from participation in the CUBIT program which he has stated to Dr Ellis he is prepared to do. That program can take approximately eight months to complete. I take those matters into account in determining the period which I consider to be appropriate for the continuing detention order which I propose to make. The question of the need for ongoing treatment and support beyond the release date will obviously be a matter for future determination.