This is the only residential treatment program for high risk sexual offenders offered by the Department of Corrective Services.
Eligibility for the CUBIT program depends on the following criteria:
C1 or C2 classification;
Sufficient time remaining prior to earliest release date to complete treatment;
Consents to undertake treatment;
Based on institutional adjustment history, management issues, and self-harm history, the offender is able to function effectively without risk to self or others .
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The CUBIT - High Intensity program is designed to address, reduce, and resolve the criminogenic needs of high risk sexual offenders, thus reducing their risk of reoffending and is of 10 months duration. It is designed to help offenders work intensively on changing the thinking, attitudes and feelings which led to their offending behaviour. Treatment addresses four major offence-specific areas - denial and minimisation, victim awareness/empathy, offence cycle and relapse prevention. Treatment also addresses the following offence-related areas - intimacy deficits/relationship issues, emotions, coping, general social competence skills and substance abuse.
Following treatment, Mr Woods would be eligible to participate in the Maintenance Program for sexual offenders. This is suitable only for offenders who have completed the appropriate treatment program (ie. CUBIT). It is operated in a group format through the Custodial Maintenance Program at Kirkconnell Correctional Centre and the Metropolitan Special Programs Centre (MSPC) and after release from custody through the Community Program at Forensic Psychology Services (FPS). Maintenance programs are relatively unstructured sessions which are supportive in nature and intended to increase the likelihood that previous treatment gains will be maintained and reinforced. They focus on relapse prevention issues specific to the needs of each individual and reinforce the gains made in more intensive treatment programs.
53 Ms Meagher concluded her report with a recommendation that the applicant's sentence should be redetermined.
54 Dr Nielssen offered the following opinion concerning the applicant's suitability to undertake the CUBIT program:
The scientific literature does not offer much guidance as to the likely effect of treatment of Mr Woods' paraphilic disorder, as most of the published studies from programmes similar to CUBIT are of mixed populations of offenders often with inadequate levels of ongoing treatment after release. On clinical grounds I believe that Mr Woods will make a good response to participation in CUBIT as he has sufficient intelligence and reasoning ability to be able to understand the subject matter and also appears to have an appropriate attitude towards his offending behaviour and his need for treatment. The opinion that Mr Woods is likely to do well in CUBIT is based on my experience as the visiting psychiatrist to area 23 of the MSPC, where I see many of the inmates in CUBIT at the psychiatric clinic.
55 The applicant first expressed a willingness to enter the CUBIT program in 1998, an attitude which he has consistently maintained ever since.
56 In light of the expert opinions to which I have just referred, the parties agreed that it was highly desirable that the applicant should undertake the CUBIT program before the present application was determined. It was also common ground, however, that a real impediment confronted the applicant. It arose because of the Departmental policy that the applicant was not eligible to do the program until he had achieved a C1 classification. I was informed that such a classification was not available, in the absence of exceptional circumstances, to someone in the applicant's position until his or her sentence has been re-determined. Mr Stratton described his client as being, as a consequence, in a "Catch 22" situation.
57 Mr Power SC, who appeared on behalf of the Crown, accordingly submitted, and Mr Stratton agreed, that the proceedings should be adjourned to enable me to make a recommendation to SORC, for the ultimate consideration of the Commissioner of Corrective Services, that the applicant be permitted to undertake the next CUBIT course, even though his sentence had not been redetermined. I acceded to that request and the matter was adjourned in order that appropriate consideration could be given by the relevant authorities to my recommendation. In September 2003, the Commissioner accepted my recommendation and directed that the applicant should undertake the next available CUBIT course. At the same time his classification was reduced to C1.
58 At that time it was anticipated that the applicant would enter the course in either January or February 2004. Although the program runs for approximately 10 months, I stood the proceedings over so that I could have the benefit of an interim report as to the applicant's progress whilst on the program. As events transpired the applicant was not able to commence the program until 5 April 2004. As at the time of the interim report the applicant had only completed 2½ months of the course. The report, which was in cursory terms, indicated that the applicant was progressing very satisfactorily.
59 In those circumstances, SORC recommended that the application be stood over again to enable the applicant to complete the course and to allow time for a discharge summary to be prepared by the Therapeutic Manager of the program. That recommendation was supported by counsel for each of the parties. In the circumstances I adjourned the proceedings until May 2005, although I also expressed considerable misgivings about the length of time that it was taking to bring the proceedings to finality.
60 The course ran for over 12 months. Of the inmates who started the course, only three were able to complete it. Three other inmates joined the program after it had started, but they all withdrew from it. The applicant was thus one of only three inmates, out of a total of sixteen who were involved in this particular course, who managed to complete it.
61 In May 2005 I received a report which was generally favourable concerning the applicant's participation in the program. The authors of the CUBIT report, Jason Borkowski and David Bright, made the following observations:
During treatment, Mr Woods has accepted responsibility for his sexual offending behaviour, and appears to have been willing to fully engage in the treatment process to gain an understanding of the elements that led to his decisions to sexually offend. However, ongoing work will need to focus on and address his low self-esteem and self worth, his assertiveness skills, attitudes towards self and others, in particular gender roles and male/female stereotypes, and deviant sexual fantasies.
Any gains that Mr Woods has made have been made in a very structured environment. Therefore until he has had a chance to consolidate these changes, they remain fragile. It is imperative that treatment for sexual offenders must include maintenance and follow-up for treatment to be effective. Subsequently it is recommended that he be referred to the custodial maintenance program. This programme allows for the maintenance and treatment gains and the refinement of relapse prevention plans.
62 The applicant described the course to Dr Nielssen as being "extremely intense" and "confronting". Dr Nielssen, having read the report and having reinterviewed the applicant, expressed the following conclusion:
The Final Treatment Report from CUBIT shows that he completed the program and that his performance was satisfactory. There is no published studies [sic] to show that completion of CUBIT or any similar program would alter the risk of recidivism. However, the intensive observation of Mr Woods during the year he was in the program did not identify any alarming attitudes or plans that would predict further offending.
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My clinical impression is that Mr Woods has made significant progress over the last eight years and the last two years in particular in the areas of self awareness and self control.
63 Dr Lucas also commented favourably on the fact that the applicant had successfully completed the course.
64 A supplementary CUBIT report dated 9 November 2005 was prepared by Ruth Marshall and David Bright. They said that:
Mark Woods is taking part in the Custodial Maintenance Group, currently running in Area 3 of the MSPC at Long Bay. The Custodial Maintenance Program has been developed for sexual offenders who have completed treatment and focuses on relapse prevention issues specific to individual need and the reinforcement of gains made in more intensive treatment programs. The Custodial and Community Maintenance Programs aim to promote the successful release and reintegration of sexual offenders by providing follow-up services in the community and through the development of a Maintenance and Support Team.
Mr Woods completed the CUBIT High Intensity Program (19.04.04 - 28.04.05), and then participated in the CUBIT Relapse Prevention Group (23.06.05 - 15.08.05), before joining the Custodial Maintenance Group on August 31st, 2005. This group meets once a week and Mr Woods has attended seven group sessions.
It should be noted that in order to participate in the Custodial Maintenance Group, Mr Woods has been transferred out of the structured and relatively safe therapeutic environment of CUBIT into the regular jail and is currently mixing with many untreated sexual offenders. This is a stage that most CUBIT graduates find extremely uncomfortable, particularly when faced with evidence of distorted thinking and negative attitudes similar to those they previously espoused. Mr Woods has coped well with this transition, responding appropriately to difficult situations and has been observed practising acquired communication, assertion and perspective taking skills on the wing. He is working well in the bakery but needs close supervision.
Mr Woods has made considerable progress over the last three months and has been working hard to consolidate gains made throughout treatment. He has presented candidly in group, even telling us when he's not being completely honest. We are obviously continuing to work on a number of issues, including offence-specific and related attitudes; core beliefs of inadequacy; intimacy deficits; sexual coping and masturbatory fantasies. Ties to [a named Church] remain concerning, but he is at least now open to questioning their views and relating these to his own risk factors.
65 As the last sentence of the report indicates, the authors were somewhat concerned about the applicant's apparent adherence to the tenets of a particular Church which is said to teach a rigid and inflexible set of beliefs that includes sexual and racial stereotyping. The evidence does not however enable me to consider the extent or significance (if there be any) of the applicant's involvement in that organisation.
66 Ms Marshall informed me that the applicant would require a further eight months to complete the Custodial Maintenance Program. He would thereafter be eligible for some form of day release so long as he had received a C3 classification. Such a classification depended, I was informed, upon his having his sentence redetermined.
67 Mr Stratton points out that the two offences for which the applicant received life sentences no longer attract that maximum penalty. The maximum penalty for the offence of maliciously setting fire to a motor vehicle knowing that a person was inside is now 14 years imprisonment, whilst the offence of wounding with intent to murder now attracts a maximum penalty of 25 years imprisonment. I accept the submission made on behalf of the applicant that the reduction in the maximum penalty for the offences in question is an issue which is relevant to this application. Although it is not determinative of the manner in which I should proceed, it is nevertheless a matter to which I shall attach appropriate weight. The Crown concedes that it is proper, in the light of the authorities, that I should do so: see, for example, R v Crump (NSWCCA) unrep 30 May 1994, per Mahoney JA at 14 and R v Page [2002] NSWSC 1067.
68 The sentencing judge concluded that there was no evidence before him of any contrition on the part of the applicant. Such a finding was undoubtedly open to his Honour, although it may be observed that the applicant did say in his record of interview with police that "what happened had got out of hand and I'm very sorry that it went that far". Circumstances have now changed. Although it has taken some considerable time, it would appear that the applicant has belatedly demonstrated considerable insight into his behaviour. He now regrets that he caused what is patently irreparable harm to his victim. Dr Lucas, for example, reports that the applicant:
now feels 'shocking' about the crimes and there were not many nights without thoughts about how 'the poor woman is doing'. He said he got very angry at himself for hurting another person, no one should get hurt. He remarked that it would have been more humane if it had been a death penalty. … He said, 'she must hate my guts, rightly so'.
69 To Dr Nielssen, the applicant described his actions as being "a cowardly attempt to cover up a crime…I left her for dead…that she didn't die was not for lack of trying". These insights may represent some indication that the applicant is slowly maturing.
70 The applicant was assessed on the static 99 actuarial risk assessment scale as being "in the high risk category relative to other adult sexual offenders". There are however limits to the utility of such tests. As Dr Nielssen observed:
I believe that Mr Woods' score on the actuarial risk assessment tool Static 99 should be viewed in its proper context, as it is a simplistic tool based on studies of very mixed groups of offenders, for offences which have a relatively low rate of recidivism compared to other categories of prisoners. The score is fixed and cannot take into account any protective factors or changes in an individual over time and should only be used as a general guide.
71 In an earlier report Dr Nielssen said:
Prediction of future risk is similarly difficult, as actuarial risk assessments are based on populations and tend to rely on static, or historical, factors and generally do not take into account dynamic factors such as the effects of treatment or a structured environment. The factors relating to Mr Woods' offence date from his early adult life. However, I would agree with the opinion expressed by Dr Lucas and others that Mr Woods needs close supervision after release including supervision by a psychiatrist or community based treatment service experienced in the management of sex offenders.
72 Nevertheless the expert evidence uniformly indicates that the applicant - by reason of his background, the offences which he committed and his conduct whilst in custody - is at risk or even at high risk of reoffending.
73 There are a number of factors which incline me to the view that I should grant the application. First, horrendous as the applicant's conduct was, it has to be acknowledged that it did not result in the victim's death, notwithstanding the efforts which the applicant made to achieve that end. Secondly, there has been a reduction in the maximum penalties available since the offences were committed. Thirdly, the applicant admitted his involvement in these offences to police and pleaded guilty at the commencement of his trial. Accordingly, right from the outset he has accepted some degree of responsibility for his crimes. His pleas of guilty obviated the need for the Crown to call any witnesses at his trial. In particular the victim was thereby spared the ordeal of having to give evidence. In doing so, the applicant has "facilitated the course of justice": see Cameron v The Queen (2002) 209 CLR 339. Although the victim identified the applicant, it was his admissions which made his conviction inevitable and it was upon that basis that it could be said that the case against him was overwhelming: see R v Thomson & Houlton (2000) 49 NSWLR 383 at 417. Fourthly, there are clear indications that the applicant has gained some insight, by reason of his recent good conduct and advancing maturity, into his offending behaviour. Fifthly, there is a body of expert opinion which suggests that his successful completion of the CUBIT program may well assist in his overall rehabilitation, a matter which would be to the ultimate benefit not only of the applicant himself but also, and very importantly, the community at large.
74 In the circumstances the Crown recognises that it is appropriate that the application should be granted. It submits that a minimum term in the order of 21 - 22 years should be imposed, together with an additional term which should be for the remainder of the applicant's natural life. In doing so, it relies upon the reasoning of Sully J in R v Veen [2000] NSWSC 656. There his Honour examined the authorities which deal with the circumstances in which a sentence, redetermined in accordance with s 13A, may attract an additional term for the whole of the offender's natural life. Mr Stratton conceded that such an approach was warranted in the circumstances of the present case, although his submission was that a minimum term of 20 years was called for. As the legislation requires that the redetermined sentences should commence from the date upon which the original sentences were imposed, it is common ground that they should run concurrently with one other.
75 In approaching the matter I must accommodate the various purposes of the criminal law: see Veen v The Queen (No2) (1987-8) 164 CLR 465 at 472-4. I must also have regard to the principles of totality. I must also ensure that the views of Yeldham J are properly brought into account. Nevertheless I am of course in a much more advantageous position than was the sentencing judge. As I have indicated, circumstances have changed somewhat since the applicant was sentenced. I also have the option available to me, which his Honour did not have, of imposing a determinate sentence with an additional term of life imprisonment. That is the course which I intend to adopt. An appropriate balancing of the competing factors in this case, as well as the views expressed by very experienced counsel who appear for the respective parties, point clearly to such an outcome. I should note, in arriving at that conclusion, that I have also had regard to the numerous authorities to which my attention has been directed.
76 Nevertheless, the question of whether or not the applicant is in fact released to parole will ultimately be a matter for the Parole Board.