The Applicant's Specific Grounds
78 Ground 1(a) asserts that the SPA's reliance on the Static 99 alone as a predictor of risk was misleading. Mr Haesler SC submitted that the SPA relied solely upon a static risk assessment and took no account of Dr Nielssen's and Ms Robilliard's risk assessments. He submits that, as a result, the SPA 's decision was made on the basis of irrelevant information for the purposes of s.155(1)(b) CAS Act.
79 Mr Lonergan submits that the SPA had before it all the information, including the reports of Dr Nielssen and Ms Robilliard, and that the SPA did not state that it was acting alone by reference to the static risk assessment. He submitted that it was but one criterion taken into account. There was limited material available to the SPA by way of dynamic risk assessment. Dr Nielssen's report contained limited analysis and his opinion was expressed shortly after he had indicated that an assessment was difficult in the circumstances of this case. The SPA decided that it would not release the Applicant to parole and requested that a full psychological assessment and report be prepared for the next occasion when the Applicant's case came before the SPA.
80 It is clear that the SPA had regard to all the information before it, including the reports of Dr Nielssen and Ms Robilliard. It was a matter for the SPA to form its own view with respect to the material in reaching a decision for the purpose of s.135(1) CAS Act. Ms Robilliard's report did not contain a risk assessment. Dr Nielssen's report expressed an opinion, but with limited explanation as to how the opinion had been formed. I am not satisfied that the SPA relied on the Static 99 risk assessment alone as a predictor. I note that Static 99 appears to be used in other jurisdictions as part of the risk assessment process for sex offenders. See, for example, Oakes v Corrective Services (Qld) (2004) 144 A Crim R 334 at 339; Green v R [2004] NTSC 65 at paragraph 19; R v Armfield (2005) 155 A Crim R 299 at 314 (SA); Director of Public Prosecutions v TP [2005] VSCA 88 at paragraph 17. It appears to be a common tool in risk assessment of sex offenders, although it forms only part of the process. I am not satisfied that the decision has been based on misleading information in the manner alleged in Ground 1(a).
81 Ground 1(b) contends that the SPA acted on misleading and irrelevant information by requiring that the Applicant submit to a full psychological assessment when there were two full reports (those of Dr Nielssen and Ms Robilliard) already provided to them. As I have noted, Ms Robilliard's report contained no risk assessment concerning the Applicant and Dr Nielssen's report was based upon the limited analysis contained in his report.
82 In my view, the SPA was not bound to act upon the reports of Dr Nielssen and Ms Robilliard. It was open to the SPA to determine that a full psychological assessment ought be obtained concerning the Applicant. It appears that the SPA's view was that a dynamic risk assessment ought be provided with that assessment taking into account the Applicant's response to a custodial treatment program. Although Dr Nielssen is an experienced forensic psychiatrist, his conclusion was based upon a single interview with the Applicant together with written material which had been provided to him. I am not satisfied that the SPA decision has taken into account misleading and irrelevant information by fixing a requirement that a full psychological assessment be provided with respect to the Applicant for future consideration. This course was open to the SPA in the discharge of its statutory functions concerning the Applicant and no basis for a direction under s.155 has been demonstrated in this respect.
83 Ground 1(c) contends that the recommendation that the Applicant not be released to parole until he had completed a relevant sex offender course in custody created the false impression that the Applicant could successfully complete the course and that such completion would reduce the risk of offending behaviour. Mr Haesler SC submitted that, even if the Applicant could be admitted to the CUBIT program, he could not complete it. Further, he submitted that the SPA acted upon the false impression that completion of the CUBIT program would reduce the risk of the Applicant reoffending. Mr Lonergan submitted this was an erroneous construction of what the SPA had done and that no basis for a s.155 direction arose in this respect.
84 The factors which the SPA identified as the reasons for refusing parole included the Applicant's risk of reoffending, his need to address his offending behaviour and his inability to adapt to normal lawful community life. The SPA stood the matter over to 10 November 2006 with reports to be provided no later than 23 October 2006 being a Probation and Parole Officer's report, a Correctional Centre report, and a psychological assessment/report regarding the Applicant's risk of reoffending. Mr Haesler SC submits that these requirements necessarily demand that the Applicant undertake and complete the CUBIT program which can then be the subject of a psychological assessment and report with respect to his risk of reoffending. He contends that this is implicit in the SPA's decision.
85 I accept that it is implicit in the SPA's decision that the Applicant ought apply for and enter the CUBIT program in accordance with recommendations made to him. However, the Applicant has not demonstrated that the decision took into account false information for the purposes of s.155 of the Act. The information before the SPA was that it had been recommended that the Applicant undertake the CUBIT program. He declined to do so as he denied being a sex offender. Whether that attitude of denial is maintained should he be admitted to the program would depend upon the Applicant's response to the program once admitted. It may be that the Applicant's attitude would cause a problem for his continuation in the program. Then again, the Applicant's attitude may change as a result of the processes to be undertaken as part of the program. That, after all, is one of the purposes of the program which includes the targeting of denial and minimisation of offending behaviour. In my view, the Applicant's election not to enter the program ought not then be able to be utilised in his favour as a means of neutralising concerns about his risk of reoffending. On the information before the SPA, the Applicant had not accepted treatment for his offending behaviour whilst in custody.
86 Because the Applicant placed information before the SPA (in his 6 September 2005 submission) concerning the suggested low success rate of the CUBIT program, the SPA provided information to me, by way of submission, concerning that topic. I was informed that, between January 1999 and September 2005, 60% of those who commenced the CUBIT program had completed it. Following changes to the program which commenced in September 2005, it was expected that completion rates between September 2005 and May 2006 would be around 99%, namely a drop-out rate of 1%. I was informed that denial of certain aspects of offending (for example, denial of a particular sexual act) does not render an offender ineligible for the CUBIT program. Categorical denial (that is, absolute denial of any sexual or other contact with the victim) may result in ineligibility for CUBIT. It was noted that offenders who categorically deny their offending are unlikely to accept a referral to CUBIT, on account of accepting a referral to CUBIT is seen as "wanting treatment" for sexual offending.
87 It appears that the Applicant's attitude up to the present time has fallen into the lastmentioned category, namely, that he does not want to be seen as wanting treatment for sexual offending. He says that he does not need it. In reference to other factors which may bear upon his eligibility for CUBIT, I note that the Applicant acknowledges an association with his two victims and, in one case, admits that sexual contact occurred. He accepts that he had sexual intercourse with the adult victim, but maintains that it was consensual. He denies any sexual offence with respect to his 12-year old niece, although, as a relative of the Applicant, she was no stranger to him.
88 Until the Applicant applies for entry to the CUBIT program, it cannot be known whether he will be refused entry or, if he is admitted, whether he will fail to complete it. It is an understandable position of the SPA that sex offenders, in particular repeat sex offenders against different victims, ought be encouraged to undertake the CUBIT program.
89 Information provided to the Court, by way of submission, indicates that the Static 99 risk assessment has a predictive accuracy of .71 which represents moderate prediction and a significant improvement on clinical opinion. It is said that risk assessment will be more robust when results of the Static 99 are provided in conjunction with a thorough analysis of dynamic risk factors.
90 I am not satisfied that the Applicant has demonstrated a basis for a s.155 direction arising from Ground 1(c).
91 Ground 1(d) asserts that the recommendation that the Applicant not be released to parole until he had completed a relevant sex offender course involved the application of a blanket policy without proper reference to the individual circumstances of the Applicant. I have mentioned earlier Mr Haesler SC's reliance upon Green v Daniels. I am not satisfied that the principle in Green v Daniels operates in the Applicant's favour in this case. I am not satisfied that the SPA applied a blanket policy in this case without proper reference to the individual circumstances of the Applicant.
92 All the material was before the SPA. Sections 135 and 135A require the SPA to have regard to a range of factors, including the Applicant's risk of reoffending and the protection of the community. The utilisation of a custodial sex offender's program in New South Wales, and the expectation that sex offenders involve themselves in such a program whilst in custody is not, in my view, an approach that is inconsistent with ss.135 and 135A of the Act. Whilst offenders remain in custody, there is an opportunity for extended assessment and counselling in the CUBIT program. It might be expected that many offenders will find that process troubling, difficult and uncomfortable. Many offenders may prefer not to do it at all. Nevertheless, it is open to the SPA to regard the undertaking of the CUBIT program by a sex offender as a most important matter bearing upon the decision whether to grant parole.