State of New South Wales v Bowdidge

22It is convenient to now consider the details of those offences. Indecent Assault (1974) 23According to a document entitled "NSW Police Crime Information Report", this incident occurred on 20 December 1974 when the defendant accompanied two young girls (aged five and six years old respectively) into a hay shed located in an animal park. Whilst there he removed the underpants of the six year old girl and looked at her genitalia. It is unclear whether the defendant, who was 14 years old at the time of this offence, knew the victim before the incident. 24A report prepared by Mr TJ Cusack, the Resident District Officer for the Department of Youth and Community Services at Nowra, which was dated 15 January 1975, noted that in the few months prior to the incident there had been a noticeable deterioration in the defendant's behaviour. Mr Cusack considered that the defendant had little chance of rehabilitating himself in his then family situation, and hoped that the more stable influence of a church home for a period of at least 12 months would be of benefit to him. Indecent Assault (1980) 25According to an undated document entitled "Facts in the Matter of Brian Allan Bowdidge - Indecent Assault Female", signed by Detective Constable Greenless, this offence occurred on 11 January 1980 at a time when the defendant was in the television room at the Shoalhaven Memorial Hospital in company with some children. He approached the victim, who was known to him, and asked her if she would like to go for a walk. When she agreed, the defendant took her from the hospital along a road on top of the eastern cliff of the Shoalhaven River to the Nowra Showground. At the Showground the defendant took the victim into the "Gents" toilet. Whilst in there he kissed her on the face, lifted up her dress and placed his hand on her vagina. He and the victim then returned to the hospital having been gone for approximately three quarters of an hour. The victim complained to her mother about what had happened to her. During the course of a recorded interview with police, the defendant admitted the matters alleged against him by the victim. When asked why he had touched the victim on the vagina he replied "I just felt like it". The defendant pleaded guilty to the offence. Sexual assault (1991) 26The victim of this offence was a nine year old mildly intellectually disabled girl. According to the statement of facts that was tendered on sentence, the defendant was staying at the victim's address between January and December 1991. The defendant entered the victim's bedroom just after she had got out of the shower. The defendant began to dry her with the towel that was wrapped around her. Whilst doing so he placed his right index finger into the victim's vagina. The victim complained to a family friend. The friend then informed the victim's mother who took her daughter to the local doctor. On conducting an internal examination of the victim, the doctor found no abrasions or vaginal discharge, but did find that the hymeneal membrane was separated. 27On 20 August 1991 the offender was interviewed by police. He admitted having touched the victim on her vagina, although he said that his finger only went in slightly and that his actions had been accidental. In response to a question as to why he had done that to the victim, the defendant replied "Just for something to do". Sexual assaults (2001) 28The victim of these offences, which occurred in 2001, was a girl of seven or eight years of age. According to the Remarks on Sentence of Goldring DCJ, which were delivered on 30 January 2002, the defendant had been in a relationship with the victim's mother at the time that he committed the offences. Although the victim lived with her paternal grandparents, she used to visit her mother on weekends. His Honour observed that it could not be said that the defendant was in the position of a full-time parent to the victim, but by reason of his relationship with the victim's mother the victim was nonetheless entitled to trust him. 29His Honour described the facts of the offences in the following terms: These particular offences took place on the same day when the victim's mother was out of the house for a short time and the brother of the victim was watching television. The prisoner removed his clothes and the clothes of the victim and placed his fingers and his penis in her vagina. There is no other evidence before me of the nature of the sexual intercourse, but it is quite clear that this was a serious act, it falls squarely within the definition of "sexual intercourse" and there is no doubt that it constituted the offences to which the accused is proved guilty. 30After referring to his previous convictions for sexual assaults upon young girls, his Honour observed that: there must be a risk that if he does not receive help and support and treatment if he is released and if he has a chance to use alcohol again the chances of him re-offending in similar ways by committing offences on young children is very high. 31In view of the defendant's record, and the "very serious" nature of the offences, his Honour considered that a substantial sentence of imprisonment was warranted, in order to send a message to the community "that people who sexually abuse young children who are entitled to trust them will be punished severely". However, his Honour also acknowledged that the defendant was a man of limited intellectual capacity, that he had pleaded guilty at the earliest opportunity, that it was his first time in prison and that the conditions of strict protection would make his time in prison more burdensome than would otherwise be the case. His Honour imposed a sentence of four and a half years imprisonment with a non-parole period of three years on a count alleging penile penetration and a fixed term of two and a half years imprisonment on a count alleging digital penetration. First contravention of prohibition order 32On 14 July 2006 a Prohibition Order for a period of 5 years was made in relation to the defendant in the Local Court. The order prohibited the defendant from inter alia: (i) actively seeking to remain in the company of any person under the age of 18 years: (ii) actively communicating or attempting to communicate (directly or indirectly) with a person under the age of 18 years; and (iii) consuming alcohol. 33On 8 April 2009 the defendant was convicted of two charges of contravening the Prohibition Order. According to the Facts Sheet which was in evidence, the defendant approached his daughter, who was 11 years old at the time, whilst she was in the company of her mother and step-father at a store in Wollongong. The incident occurred in about July 2008. During their conversation the defendant told his daughter that she could visit him in Sydney. Her mother told the offender however that he was not permitted to see her and that he was not permitted to be around children. This incident was not reported to police at the time. However the child's mother subsequently reported the matter following an incident which occurred on 29 December 2008 when the defendant approached the daughter's home with a gift for her. The girl's step-father opened the door and spoke with the defendant. He took the gift from him and told the defendant that he was not supposed to be there. 34On 12 January 2009 the defendant wrote to the child's mother and asked if his daughter could stay with him one weekend. When the police went to see him, the defendant was out the front of his residence drinking a bottle of beer, in contravention of the order requiring him to abstain from drinking. 35The defendant was charged with two counts of contravening a Prohibition Order. In an interview with the Probation and Parole Service, the defendant conceded that he had been under the influence of alcohol at the relevant time. He said however that since that time he had avoided using it. He was sentenced to nine months' imprisonment which was suspended on condition that he entered a good behaviour bond. The conditions which were attached to the bond included a requirement that he accept the supervision of the Probation and Parole Service and that he obey all reasonable directions for counselling, educational development and drug and alcohol rehabilitation. Second contravention of prohibition order 36According to the Remarks on Sentence of the Magistrate, dated 19 August 2009, the defendant befriended a woman who had a 13 year old daughter. He had been living with the woman and her daughter in breach of the Prohibition Order. The police facts sheet reveals that the woman in question said that the defendant had been staying at her home on a regular basis for the previous six or seven weeks. In sentencing the defendant his Honour observed that: [t]he matter, of course, that is of critical concern in this as I say so often is ultimately protection of the community. The prohibition order was there for a particular person given the very long history the defendant has of assaults, sexual assaults upon very young children, and of course the matter involved his attendance, not sexual assault, I keep that in mind of course, but he is in breach of the order. 37In respect of that offence the defendant was sentenced to a total sentence of 14 months imprisonment with a non-parole period of 10 months. At the same time the bonds which had been imposed in relation to the earlier offences were also revoked. 38The defendant has other criminal convictions which do not involve sexual offending but none of them have resulted in a custodial sentence. His record includes convictions for stealing, break and enter, assault, illegal use of a conveyance, malicious damage and arson. Pattern of offending displayed by the defendant's criminal history 39In summarising the defendant's sexual offending history for the purposes of a Risk Assessment Report, Mr Patrick Sheehan, a psychologist employed by Corrective Services NSW, made the following observations: (i) The defendant had committed sexual offences between 1974 and 2001; (ii) The victim of each offence was a young girl between the ages of five and nine; (iii) The victims of the 1980, 1991 and 2001 offences were known to the defendant, whilst it was unclear whether he knew the victim of the 1974 offence; (iv) The offences ranged from sexual fondling to digital and penile penetration. 40Although he has not committed a serious sex offence since 2000, the defendant has twice been convicted of contravening the prohibition order made on 14 July 2006. Both contraventions involved the defendant actively seeking to remain in the company of a female person under the age of 18 years. Both girls were known to him, the first being his daughter and the second being the daughter of a woman with whom he had recently formed a relationship and with whom he was staying. Mr Sheehan developed a risk scenario in respect of the defendant. It was based upon an analysis of his offending history, his participation in the Custody Based Intensive Treatment ("CUBIT") Adapted Program, previous assessments that had been made of him and an interview. Mr Sheehan then said: Were [the defendant] to establish contact with persons who cared for a female child; were he to experience sexual attraction to that child; were he to overlook the risk of close association to that child and place himself in situations where he might be alone with that child; were he to consume alcohol and further disinhibit his sexual behaviour, were he to disregard the potential consequences (to himself and the child) of sexual contact with the child. The impediment to sexual offending in this context would be negligible. ... Like most offenders, [the defendant's] history does not suggest that he would sexually act on every occasion these features coincide. Indeed, his offending history illustrates periods between three to ten years between charges for sexual offending. The risk is chronic in nature in that over time as he was exposed to these risk factors without intervention or interruption, there would be less impediments to a sexual offence should [the defendant] find himself in situations similar to that described above. Section 9(3)(f): the level of the defendant's compliance with any obligations to which he has been subject while on release on parole 41On 3 December 1979 the defendant was released on a recognizance to be of good behaviour for 18 months following his conviction for three counts of stealing. On 12 January 1980 less than a month after entering into that recognizance, the defendant was charged with indecent assault. It appears that a report was prepared in relation to that breach but that no action was taken in relation to it. 42In respect of that indecent assault the defendant was ordered in May 1980 to enter into another recognizance to be of good behaviour for a period of three years. In October 1980 he was convicted of driving offences in apparent breach of that recognizance. 43In July 1987 the defendant was convicted of a number of offences and was again released on a recognizance to be of good behaviour for a period of three years. In March 1988 he was convicted of maliciously setting fire to property. In sentencing the defendant the sentencing judge observed that the offences had been committed in early October 1987, "barely three months" after he had been released on a recognizance. On this occasion the defendant was sentenced to be of good behaviour for a period of seven years. 44In March 1991 the defendant was convicted of breaching an apprehended domestic violence order in respect of which he was sentenced to the rising of the court. As I have said, he was charged on 20 August 1991 with having had sexual intercourse with a person under the age of 10 years and on 25 September 1991 he was convicted of assault. 45The defendant's conviction in August 2009 for having breached the prohibition order constituted a breach of the good behaviour bond which had been imposed in respect of the first set of contraventions of that order. 46There is nothing however to suggest that the defendant did not comply with the conditions of his parole when he was released from custody in 2010. Section 9(3)(g): level of the defendant's compliance with any obligations to which he has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004 47The defendant has registered under the Child Protection (Offenders Registration) Act and there is no suggestion that he has failed to comply with his ongoing obligations under that Act. I have already dealt with the difficulties that he has had in respect of the other piece of legislation. Section 9(3)(b): The reports received from the persons appointed under section 7(4) to conduct psychiatric examinations of the offender, and the level of the offender's participation in any such examination 48Dr O'Dea first saw the defendant in 2002. Although Dr O'Dea does not appear to have provided a formal report at that time, progress notes which he made at the time indicate that during the consultation, the defendant described "long standing specific/intense/overpowering/recurrent heterosexual paedophilic urges/fantasies". Dr O'Dea recommended that he be referred to a suitably qualified and experienced forensic psychiatrist in the months leading up to his release in order that a community psychiatric sex offender treatment program that was "likely to require involvement of testosterone lowering medication" could be implemented. 49For the purpose of preparing his report for these proceedings, Dr O'Dea interviewed the defendant for a period of approximately 90 minutes. He described the defendant's participation in the interview as cooperative, but noted that he appeared "somewhat child-like at times with limited general intelligence". He also said that: [h]e answered many questions, particularly in relation to his forensic history, in an apparently dismissive manner, frequently simply stating in a light-hearted manner that he could not remember details of the events in question and not providing any further information on the matters raised. At other times, when endeavouring to describe aspects of his history in more detail, his account was difficult to follow in a logical and sequential manner. This appeared best understood in the context of his limited general intellectual functioning. He did not convey a sense of remorse in relation to his history of sex offending or convey a clear plan and commitment to managing his risk of engaging in further sex offending behaviours, other than by indicating that he was willing to continue to take the prescribed testosterone lowering medication and to abstain from alcohol. 50The defendant identified his sexual orientation to Dr O'Dea as being heterosexual with an attraction to adult females. However, he also readily acknowledged a specific and strong sexual attraction to young girls, particularly those between 7 and 10 years of age. Dr O'Dea considered that this attraction, coupled with the defendant's significant history of sex offending against young girls, meant that the defendant fitted into the psychiatric diagnostic category of "Pedophilia, Sexually Attracted to Females, Not limited to Incest, Nonexclusive Type (a Paraphilia otherwise referred to as Heterosexual Paedophilia)". Dr O'Dea stated that the defendant's history of repeated sex offending was best understood [i]n the context of, and driven by, this specific paraphilia or specific deviance, with additional problems of his limited intellectual functioning and history of alcohol use disorder making it more difficult for [the defendant] to monitor and control his behaviours without external assistance. 51On the basis of his assessment of the defendant, Dr O'Dea expressed the opinion that the defendant's risk of engaging in further sexual offending behaviour in the community in the long term "would be considered significantly high and appropriate for these specific treatment interventions". In the absence of such intervention, Dr O'Dea considered that there would be a significantly high degree of probability that the defendant would be likely to commit a further serious sex offence. 52Dr O'Dea considered that specific psychiatric treatment aimed at managing and minimising the defendant's risk of reoffending was required from a clinical psychiatric risk management perspective. He stated that the main components of such a treatment program would be "continuation of the testosterone lowering medication, abstinence from alcohol use and structured community social support, all in the community in the long term": He also said that: [a]s a result of his evident limited intellectual functioning, general cognitive psychological interventions, rather than supportive and specific behavioural psychotherapeutic approaches, are likely to prove of limited value in managing and minimising [the offender's] risk of engaging in further sex offending behaviours in the community in the long term. 53Dr O'Dea observed that the program which he considered would be appropriate for managing the defendant's risk in the community was currently in place. It involved ongoing psychiatric care being provided by Dr Olav Nielssen with input from community psychological teams. He noted that in the course of his examination the defendant had told him that up until he started taking Androcur he had masturbated 3 or 4 times a week, but had ceased doing so altogether since taking it. 54In relation to the duration of the order, Dr O'Dea considered that as the defendant's risk of reoffending was "likely to be relatively long term", an order of 5 years' duration was appropriate with his current management plan being regularly monitored and reviewed every six to twelve months. 55Dr Samuels had previously examined the defendant in 2005. On that occasion he prepared a psychiatric report for the Parole Authority in which he concurred with the view expressed by other professionals which was to the effect that the defendant remained at a "moderate-high risk of reoffending". Dr Samuels stated that the defendant had antisocial personality features, that he fulfilled the DSM IV TR criteria for "Paedophilia, exclusive sub type with attraction to females" as well as the criteria for alcohol abuse and possible dependence which was then in remission. 56Although the defendant gave Dr Samuels the impression that Androcur, being an antilibidinal medication that he was then taking, was making a difference, the inconsistencies in his presentation made it difficult for Dr Samuels to know what the real impact of the medication was. He considered that anti-androgen medication was "the only treatment option available to him". In relation to alcohol abuse, Dr Samuels considered that the defendant remained "at quite high risk of returning to a heavy drinking pattern [which] could certainly lead him to act impulsively and to potentially re-offend in various ways". 57In preparing his report for the present proceedings, Dr Samuels examined the defendant on 22 December 2010. There is nothing in his report to suggest that the defendant was anything other than cooperative during the course of that consultation. As had been the case in his examination by Dr O'Dea, the defendant was able to remember little of his sexual offending history. However, in relation to the 2001 offence, the defendant told Dr Samuels that he had had sexual contact with the victim on a number of occasions prior to being charged. 58Dr Samuels said that his diagnostic opinion was "essentially unchanged from when I saw [the defendant] in 2005". Like Dr O'Dea, he considered that the defendant fulfilled the DSM IV TR criteria for "Paedophilia, sexually attracted to females, nonexclusive type", noting that his predominant attraction was to children. He also expressed the view that the defendant was functioning in the borderline intellectual range. He observed that his thinking and response to questions was quite stilted and concrete, and that he had difficulty grasping complex questions. 59Dr Samuels expressed the opinion that without supervision, and particularly without his paedophilic urges being controlled by libido-lowering medication, the defendant was likely to commit a further serious sex offence. He considered that "anti-androgen medication would appear to be the mainstay of treatment" with the defendant's capacity to benefit from psychological treatment being "somewhat limited". In relation to the anti-libidinal medication that he was taking, the defendant told Dr Samuels that he had no sexual thoughts or fantasies about children, and that he did not get erections or masturbate. He told Dr Samuels that when he was not on the medication, he masturbated most days to sexual fantasies about girls between the ages of seven and nine. Section 9(3)(c): The results of any other assessment prepared by a ... registered psychologist ... as to the likelihood of the defendant committing a further serious sex offence, the willingness of the defendant to participate in any such assessment, and the level of the defendant's participation in any such assessment Mr Sheehan's Risk Assessment Report 60Mr Sheehan described the defendant as being "approachable and cooperative" during an interview which he conducted with him on 23 August 2010. His impression was that the defendant generally made an effort to respond appropriately and honestly, although Mr Sheehan thought that he appeared to have some difficulty understanding questions put to him and in expressing his responses. Mr Sheehan described the defendant's memory as "impoverished" and his recall of dates and facts as unreliable. Mr Sheehan suspected that the defendant's poor communication was "perhaps additionally aggravated by avoidance of uncomfortable subject matter". 61Although an early psychological report described the defendant as having "a long history of emotional problems", Mr Sheehan did not see any compelling information on the file to indicate that the defendant had experienced major affective disorder or psychotic illness. However, in his opinion, he did meet the diagnostic criteria for "Pedophilia, Nonexclusive Type". Mr Sheehan considered his paedophilia to be of the "nonexclusive" type because while he had "an enduring and recurrent intense sexual interest in prepubescent females (according to his self report, his interest is in females aged around seven years)", he was also attracted to adult females. 62Mr Sheehan also considered that the defendant's history met the diagnostic criteria for Antisocial Personality Disorder. However, the fact that the defendant had not been known to engage in any outwardly antisocial behaviour for a period of approximately 10 years, or to have engaged in any acts of non-sexual aggression for a period of approximately 13 years, suggested to Mr Sheehan that his advancing age may be moderating the antisocial features of his personality. Mr Sheehan also considered that the defendant's alcohol use permitted a diagnosis of Alcohol Abuse. 63In terms of his intellectual functioning, Mr Sheehan noted that the defendant had been assessed as "within the Extremely Low to Borderline range with a full scale intelligence quotient of 55". While this would meet the criteria for Mild Mental Retardation, Mr Sheehan observed that there was a significant discrepancy between the defendant's verbal intelligence and his non-verbal intelligence, which indicated that "the full scale or total score should not be considered a meaningful interpretation of overall intellectual functioning". He instead proposed a differential diagnosis of "Mixed Expressive-Receptive Language Disorder" which is a communication disorder in which both the expressive and receptive areas of communication may be affected. 64On the subject of risk, Mr Sheehan concluded that the defendant's behaviour during an earlier period of community supervision, as well as what he said during the course of the interview, suggested "that he has a limited appreciation of his risk or how to manage it". 65In relation to his dynamic risk factors, Mr Sheehan applied a structured professional judgment tool known as the "Risk of Sexual Violence Protocol (RSVP)" pursuant to which an offender is rated on a specific list of 22 dynamic risk factors which are not mutually exclusive and which relate to five matters, namely: Sexual Violence History, Psychological Adjustment, Mental Disorder, Social Adjustment and Manageability. According to Mr Sheehan, the defendant exhibited relevant risk factors in all five domains. 66In relation to the dynamic risk factors consistently found to be related to sexual reoffending, Mr Sheehan made the following observations. 67Intimacy deficits: The defendant has never experienced an enduring physical relationship with a partner, with his description of sexual relationships indicating that they were temporary and superficial. Although the defendant said that he made friends easily, Mr Sheehan found the quality of his interpersonal attachments difficult to establish, with the defendant's descriptions of his friendships making them sound "transient and hollow". 68Social influences: Mr Sheehan considered that the defendant's social influences were neutral, with the defendant's description of his peers suggesting that his social connections were mostly made with persons similar to himself, namely "lower functioning and aimless individuals". Whilst Mr Sheehan was preparing his report, the defendant's brother, with whom he had until then remained in touch, indicated that he no longer wanted to have any contact with the defendant. 69Distorted attitudes: Mr Sheehan observed that the defendant has held distorted attitudes regarding sexual abuse in the past. The results of the tests which Mr Sheehan administered however indicated significantly less distorted attitudes about sexual contact with children than did the results of the tests which he had administered to him in 2001 and 2003. On the other hand, Mr Sheehan still identified a number of negative attitudes which the defendant held towards women. Mr Sheehan considered that the defendant may have made "some headway" in challenging his cognitive distortions and concluded that "[a]t the very least, this identifies that the defendant has learnt that the expression of such attitudes is not acceptable". 70General self-regulation: Mr Sheehan described the defendant's general self-regulation as "poor", with this being "one of the central themes of his risk which, in interaction with his sexual deviancy, has facilitated his episodes of sexual offending". In his view, the defendant's inability to monitor his thoughts and behaviour had led him to make decisions without proper regard to the consequences, as evidenced by his sexual offending conduct. He said that although the defendant knew that it would contribute to his risk to discontinue Androcur, and to consume alcohol and to also reside in a dwelling with a young girl, he nonetheless proceeded to do all of those things. Mr Sheehan characterised these actions as demonstrating "a lack of mindfulness or myopic focus on his particular need at the time". 71Sexual self-regulation: Mr Sheehan concluded that the defendant's sexual offences represented "clear instances of poor sexual self-regulation" and stated that enduring deviant sexual interest in girls may not abate. 72Acute dynamic risk factors are factors associated with risk that can change rapidly and which are indicative of increasing risk and the need for more intensive supervision. In considering whether any acute dynamic risk factors applied in the case of the defendant, Mr Sheehan observed that: [d]uring [the offender's] most recent period of community residence, he engaged in substance use (alcohol), victim access (contacting his daughter, residing in a dwelling with a female child), collapse of social supports (inadequate prosocial network) and rejection of supervision (missing appointments and breaking rules). 73Mr Sheehan concluded his assessment of the defendant's risk in the following terms: [The defendant] is assessed as within the high risk category with regard to actuarial factors. He has exhibited relevant risk factors in all 5 domains of the RSVP dynamic risk assessment tool and in less structured examination of known risk factors. Whilst age may have extinguished the outwardly antisocial dimension of his behaviour in comparison to his younger years, he remains a man with a paraphilic interest towards young girls who has shown poorly developed skills in his ability to independently manage his risk of sexually reoffending. It would be difficult to imagine that the presence of these risk factors would not expose [the defendant] to risk over time, predisposing him on occasion to acutely high risk scenarios, increasing the risk of eventually acting out sexually, the overall totality of evidence suggests that [the defendant] remains in the high risk category of sexual offending relative to other adult male sexual offenders. Other Psychological Reports addressing the defendant's risk of reoffending 74A number of other reports have been prepared in relation to the defendant during the course of his offending history. 75Just prior to his discharge from the CUBIT Adapted Program, Ms Kristy Murphy, a psychologist with Corrective Services NSW, administered a series of tests to the defendant in order to assess his intellectual functioning. As a result of those tests, Ms Murphy considered that the defendant might "appear to function more effectively than he is able to". She continued: [The defendant] is able to effectively place words in their correct context, yet fails to demonstrate comprehension of the meaning of words. This skill may result in [the defendant] appearing to understand and follow information to a greater degree than he actually does, as [the defendant's] comprehension of verbal and social information is abnormally poor. 76To similar effect are the views of Dr Christopher Lennings, a psychologist, who prepared a report as to the defendant's intellectual functioning in 2001. He described the defendant as having an "impoverished working memory (attention and concentration span)" for which he tended to compensate by resorting to confabulation. 77Mr Graham Rendell, a psychologist with Corrective Services NSW expressed the view in 2001 that the defendant was at a high risk of sexual reoffending. He said that his offences against three girls under the age of ten when he was fourteen, thirty-two and forty-one respectively "were committed autonomously and demonstrated significant planning, manipulation and a lack of self-restraint together with a marked degree of entrenched sexual deviance". The defendant admitted to Mr Rendell that he was unable to control his deviate impulses, stating "I just do them, never wonder why, just accept it". 78Ms Katherine Barrier, psychologist, described the defendant in 2001 as "a man of limited intellectual functioning who has very limited insight into the effects of his offending behaviour". She said that in relation to the 2001 offences, the defendant knew that his behaviour was wrong but that he could offer no reasons as to why it was wrong or what effects it may have had on the complainant. 79In his Discharge Report for the CUBIT Adapted Program, which is dated 24 October 2003, Mr McElhone, a psychologist with Corrective Services NSW, considered that the defendant's result on the Static-99 instrument fairly represented his risk at that time. In relation to his dynamic risk factors, Mr McElhone observed that: (i) in relation to intimacy deficits, the defendant reported an impoverished social life with no significant intimate relationship and possibly only limited involvement with community welfare organisations; (ii) the defendant had a sexual preoccupation with female children and pointed to his comments in group sessions "where he seemed to regard his victim as an active, consenting partner in his sexual activities"; (iii) the defendant acted impulsively and had a poor cognitive problem solving capacity; and (iv) the defendant had a long history of alcohol abuse. 80Mr McElhone expressed the view that these risk factors were, "if anything, exacerbated by the defendant's significant deficits in comprehension and social reasoning [which meant that] management of [the defendant's] risk needs to be predominantly external". 81Before he was released on parole in 2005, and indeed whilst he was on parole, the defendant was prescribed antilibidinal medication (Androcur). Letters prepared by Dr Nielssen, dated 8 March 2006 and 20 April 2006 respectively suggest that he administered the medication to the defendant whilst the defendant was in custody. Dr Nielssen did not suggest that the defendant was not compliant with his medication. Section 9(3)(d): the results of any statistical or other assessment as to the likelihood of persons and with histories and characteristics similar to those of the defendant committing a further serious sex offence. 82In preparing his Risk Assessment Report, Mr Sheehan used the Static-99R instrument to assess the defendant's static risk. The instrument which has a moderate predictive accuracy, was updated in 2009 using studies from Canada, the United States, New Zealand and Europe with a total sample size of 6,774 sexual offenders. It now consists of 10 items and produces estimates of future risk based on a number of factors present in any one individual. 83The defendant scored a "6" on this instrument, which placed him in the high risk category relative to other male sexual offenders. According to Mr Sheehan: The rates of sexual recidivism for sexual offenders within the normative samples who had the same total score as [the defendant] were between 14.7-31.2 per cent over five years, and 27.6-41.9 per cent over ten years. The recidivism rate of individuals convicted/charged with sexual offences with the same score as [the defendant] would be expected to be 2.91 times higher than the 'typical' sexual offender. Between 89.7-94.9 per cent of sexual offenders in the routine sample would score at or below [the defendant's] score. 84The Static-99 instrument, before it was updated in 2009, was used on previous occasions in relation to the defendant. In preparing a referral for the CUBIT Adapted Program, Mr Rod Schou used the instrument in relation to the defendant who obtained a result of 6; and in preparing the Discharge Report for the CUBIT Adapted Program, Mr McElhone used the instrument in relation to the defendant who again obtained a result of 6. 85As Mr Sheehan observed in his Report, the use of the Static-99 instrument has its limitations. In particular, as the recidivism estimates and relative rankings are based on groups of individuals, those estimates and rankings "will not necessarily directly reflect the recidivism risk of an individual offender." Furthermore, the instrument is not sensitive to changes in an offender's circumstances which may increase or decrease his actual risk. Section 9(3)(e): Any treatment or rehabilitation programs in which the defendant has had an opportunity to participate, the willingness of the offender to participate in such programs, and the level of the defendant's participation in any such program 86The defendant was accepted into the CUBIT Adapted Program on 25 June 2003 and was removed from it in early October 2003. As Mr Sheehan observed in his Risk Assessment Report, the CUBIT Adapted Program, which was discontinued during 2004, was designed for offenders with literacy problems, high functioning offenders who had a borderline intellectual disability, or other offenders with special needs. 87In his discharge report Mr McElhone noted that concerns had been raised about the fact that the defendant did not appear to comprehend the issues which were being discussed in group sessions. In response to these concerns, a psychological assessment was made in relation to the nature and severity of any cognitive deficits which the defendant may have. That assessment revealed that his verbal skills in relation to comprehension and social reasoning were very poor. That was consistent with the observations which had been made of his behaviour during treatment. The assessment had also led to the decision to remove the defendant from the program. 88The difficulties that Mr McElhone identified so far as the defendant's participation in the CUBIT Adapted Program was concerned included: (i) the fact that his description of the events associated with the index offence involved a significant degree of minimisation of its seriousness; (ii) the fact that he displayed "an almost complete lack of understanding of the possible effects of his abuse on his own victims" and, when asked to focus on issues associated with his victims, he would continue to focus on himself; (iii) the fact that his comments during group sessions, and in his written work, suggested that he had "significant difficulty grasping the concepts involved in the sessions and understanding how they could be applied to his life"; and (iv) the fact that occasionally during group sessions, and regularly whilst in CUBIT, he communicated poorly in conflict situations "resorting to verbal aggression and physical isolation when feeling angry". 89The cognitive impairment that the defendant displayed during the CUBIT Adapted Program was confirmed by the psychological testing. It meant that his criminogenic needs, being those associated with his risk of reoffending, could not be addressed through the program. Mr McElhone expressed the view that in lieu of further treatment in the program, management of the defendant's risk would need to be "predominantly external". Section 9(3)(i): other information available as to the likelihood that the defendant will in future commit offences of sexual nature 90In his report Dr Samuels described the nexus between the defendant's drinking and offending behaviour as "not entirely clear" although he considered that it may well be "a factor that has, at least, a part to play in the offence cycle". The defendant reported to Dr O'Dea that he used to drink approximately once per fortnight, consuming between eight and twelve schooners of full strength beer in a session. He told Dr Samuels that he had drunk heavily since the age of 17. 91Dr Lennings considered that the defendant's potential for abusing alcohol "ranged from problematic to severe on occasion" with the limitations on his alcohol intake being "primarily financial". In an interview with Ms Lee Dodsworth, a psychologist at the Junee Correctional Centre in September 2004, the defendant told her that he began drinking at 17 years of age and that he "drinks to excess whenever he has the means to do so". He told her that on his release, he would continue to drink when he visited his local club, but that he would drink middies instead of schooners. 92In his report Mr Sheehan stated that the defendant "demonstrated poor insight into his alcohol use". He continued: Whilst he acknowledged a lifelong problem with alcohol consumption and its relationship to episodes of offending (sexual and otherwise), he blithely assumed it would be a simple matter for him to discontinue all alcohol use when he returned to the community, stating "I can go to the club and just drink coffee'. He had trouble understanding why he continued to consume alcohol during his recent period of community living, despite explicit direction not to do so. His conclusion being, "I just do it without thinking'. Further, [the defendant] showed naivety regarding what beverages actually contained alcohol, reasoning 'I can drink cruisers and west coast coolers. They don't have any alcohol'. My impression was that [the defendant] will require ongoing support and regular supervision/direction if he were to remain alcohol abstinent in the community. A simple prohibition against alcohol use is unlikely to be effective. 93Whilst on parole, and whilst subject to the interim supervision order, the defendant has been required to undergo both scheduled and random drug and alcohol testing. He has returned a negative result on each of the occasions on which he has been tested. Both Dr O'Dea and Dr Samuels consider that the defendant should abstain from alcohol. Dr Samuels stated that regular breath testing would make him aware "that if he does drink he will be found out". He was not certain that a group such as Alcoholics Anonymous would be of benefit to the defendant in view of his intellectual capacity. The defendant's present circumstances 94The defendant is currently residing at the Community Offender Support Program (COSP) centre at Campbelltown. Arrangements are being made by the Community Justice Program (CJP), which is administered by the Ageing Disability and Home Care Division of the Department of Human Services (ADHC), to move him to residential accommodation. 95The Community Justice Program is a voluntary program the aim of which is to support offenders with intellectual disabilities who are leaving custody. Mr Barry Palmer, a Registered Learning Disability Nurse with ADHC, explained in his affidavit that the primary aim of the program is to minimise recidivism rates for this group and to enable appropriate community integration. 96Participation in the program involves an initial assessment process, in which the defendant has already engaged, that results in an individualised plan being formulated for each participant. According to Mr Palmer, the plan usually addresses matters such as the participant's accommodation needs, the number of hours of support which are to be provided to them on a weekly basis as well as the type and form of intervention which is to be provided in order that the individual's risk of reoffending can be managed. 97Following the assessment process, a client risk profile is developed. After participating in the CJP for a period of three months, the aim is to have the participant settled in their accommodation and to be working towards longer term goals, such as obtaining employment, addressing drug and alcohol issues, and mixing with pro-social peers. According to Mr Palmer, a further objective of the CJP is to have participants move from higher levels of support to less intensive levels of support. 98Mr Palmer has been intimately involved in assessing the defendant and preparing his Case Management Plan and the more detailed Incident Prevention and Response Plan (IPRP). The accommodation model that has been devised for the defendant involves him receiving drop-in support at independent accommodation from an external organisation called New Horizons. The staff who will be working with the defendant, under the guidance of CJP staff, are experienced in working with persons who have intellectual disabilities. 99The IPRP identifies the following key themes for providing support to the defendant:

• The primary theme for supporting [the defendant] is based upon his own personal development in order to function in a pro-social manner that is inconsistent with his past offending pathways.
• A key component of this premise is his adherence to the extended supervision order. Whilst [the defendant] is ultimately responsible for complying with the order, it is essential that he is provided with opportunities to fully understand the document. In doing so, [the defendant] will be able to calculate the ramifications of any decisions he makes that may impact [on] his compliance.
• To achieve the above, [the defendant] will require support in developing skills that will enable him to identify the possible outcomes/consequences of the decisions he makes. By doing this [the defendant] can become more effective at planning and problem solving. To achieve this staff will need to regularly assist [the defendant] in practising his problem solving skills and facilitating reflection of his past behaviours.
• It is also essential that staff support [the defendant] to identify future goals that are prosocial and important for [the defendant], eg relationships and activities. If this can be achieved in a prosocial manner he will be motivated to finding more appropriate ways to achieve these goals. 100Since his release, the defendant has been compliant with the conditions of the interim supervision order. According to notes recorded on the Offender Information and Management System maintained by Corrective Services NSW, the defendant has been participating in drug and alcohol counselling once a month, and has started attending a men's support group. In addition, he is voluntarily taking libido-lowering medication, Androcur, under the supervision of Dr Nielssen. Section 9(3)(a) - the safety of the community 101As I said earlier, ensuring the safety of the community is the primary object of the Act. All of the matters to which reference has been made are relevant to that issue, but the following matters are worthy of repetition in the present context. 102The defendant's criminal history indicates a pattern of offending against young females between the ages of five and ten. The defendant has acknowledged that he has a strong sexual interest in females between the ages of seven and nine, and both court-appointed psychiatrists consider that he meets the diagnostic criteria for "Paedophilia, sexually attracted to females, non-exclusive type". With the exception of the first offence, each of the subsequent victims was known to the defendant before the offences took place. Moreover, the offences appear to have escalated in terms of their seriousness with the offences committed in 2001 having involved both digital and penile penetration. 103The court-appointed psychiatrists have both expressed the opinion that the defendant would be likely to commit a further serious sex offence if he was to be released without supervision. In his Risk Assessment Report, Mr Sheehan also expressed the view that the defendant remains in the high risk category of sexual offending, both in terms of his static and dynamic risk factors. In addition to paedophilia, Mr Sheehan considers that he has demonstrated antisocial personality traits, although they may have been ameliorated, to some degree, with the passage of time. 104The defendant has an intellectual disability which limits his capacity to understand his offending behaviour and to appreciate the risk factors that lie behind it. Mr Sheehan describes his poor general self-regulation as being one of the central themes of his risk which, together with his sexual deviancy, has facilitated his episodes of sexual offending. The defendant's intellectual disability has also limited his amenability to treatment within the custodial system as is apparent from his time in the CUBIT Adapted Program. 105Although the defendant has not committed a serious sex offence for nearly ten years, he was in custody for some of that period of time. Nevertheless, the nature of his recent contraventions of the Prohibition Order gives rise to concerns because of the pattern of his offending and his poor general and sexual self-regulation. The fact that the defendant could only appreciate the risk involved in his behaviour in breach of that order when it was explained to him by Mr Sheehan indicates that the prohibition order itself is insufficient to meet the risk of further offending behaviour on his part. The need for external management of the defendant's risk has been a constant theme in the reports that have been prepared over time. 106I accept that releasing the defendant on an extended supervision order, with a level of supervision which has not previously been available, will assist in managing the risk which he poses while at the same time providing the defendant with a structured environment within which to re-engage with the community. 107In the light of the material which has been placed before the court, I am satisfied that the requirements of s 9(2) have been satisfied. Further, there are no countervailing factors which would justify the court in refusing to make it. In my view the need to protect the community, as well as the need to facilitate the defendant's rehabilitation, require that an extended supervision order be made upon the conditions which appear in the Schedule to the amended summons. I am fortified in that view by the fact that the defendant does not oppose the making of the order. Nor is objection taken in respect of any of the proposed conditions which, very sensibly, have been the subject of agreement between the parties. Duration of the order 108That leaves for consideration the issue of the duration of the order. As I said at the outset, the plaintiff has sought an order for five years, being the maximum period for which an order can be made under the Act. The defendant's position was that an order for a period of three years was, in the circumstances, more appropriate. 109Section 10 relevantly provides: (1) An extended supervision order: (a) commences when it is made, or when the offender's current custody or supervision expires, whichever is the later, and (b) expires at the end of such period (not exceeding 5 years from the day on which it commences) as is specified in the order. ... (3) Nothing in this section prevents the Supreme Court from making a second or subsequent extended supervision order against the same offender. 110Section 13(1) provides that: The Supreme Court may at any time vary or revoke an extended supervision order or interim supervision order on the application of the State of New South Wales or the offender. 111The plaintiff emphasised that the legislation was protective, rather than punitive, in nature. It was also submitted that each of the court-appointed psychiatrists was of the view that an order for 5 years was appropriate. It was further submitted that the conditions which had been proposed contained "a measure of flexibility which will enable the level of supervision to be reduced over time, depending on the defendant's response. The aims of the CJP are similarly to facilitate a reduction in the level of service required by the participant over time." It was finally submitted that an order for 5 years was necessary "to provide the requisite level of confidence that the risk posed by the defendant to the safety of the community...can be adequately contained". 112In State of NSW v Quinn [2008] NSWSC 1080, Hidden J observed of that defendant that his: rehabilitation would be fostered by his seeing some light at the end of the tunnel. [para 10] 113It was submitted by counsel for the defendant that a similar approach was warranted in the present case. Moreover, it was submitted that an order of the duration which the plaintiff sought may prove to be counter-productive in that it may undermine the defendant's rehabilitation. It was also submitted that in determining the duration of the order it was appropriate to have regard to the fact that since 29 September 2010 the defendant had complied with the conditions of his parole and since 29 December 2010, had complied with the conditions of the interim supervision order. Giving recognition to those positive steps towards rehabilitation would, it was submitted, be likely to encourage future compliance. 114Counsel for the defendant also submitted that s 13 of the Act enables the plaintiff to make a further application should it become necessary to do so. 115Other than the matters which are identified in s 3, the Act otherwise provides no particular guidance as to how the length of the term is to be determined. In the final analysis I must make an evaluation, based on the evidence which has been adduced on this application, whilst bearing in mind that the primary object of the legislation is "to ensure the safety and protection of the community". 116It is axiomatic that the task of assessing the risk that a particular person may reoffend is fraught with difficulty. Even more hazardous is the task of predicting the duration of that risk. 117The defendant clearly faces particular challenges because of his intellectual capacity. The fact that he has remained compliant with the conditions to which he has been subject since his release from custody is of some significance. Given his particular circumstances, it may be that providing him with some degree of incentive may serve to facilitate his rehabilitation. Nonetheless I accept the plaintiff's submission that I must have at the forefront of my assessment of the matter, the primary object of the Act, which is the safety and protection of the community. Balancing the competing factors as best I can, I have come to the view that the order should be of four years duration. Conclusion Pursuant to s 9(1) of the Act, I order that for a period of four years from today, the defendant be subject to an extended supervision order by complying with the conditions set out in the Schedule to the amended summons. Schedule EXTENDED SUPERVISION ORDER: CONDITIONS APPLICABLE TO BRIAN ALAN BOWDIDGE Oversight For the purpose of these conditions, the Departmental Supervising Officer is the person authorised from time to time by the Commissioner of Corrective Services to manage and supervise the defendant pursuant to the extended supervision order. The Department is the Department of Justice and Attorney General ("the Department"), of which Corrective Services NSW is a division. The Community Compliance and Monitoring Group ("the CCMG") and Probation and Parole are each part of Corrective Services NSW. The Community Justice Program ("CJP") is a program run by Ageing, Disability and Home Care ("ADHC") which is a division of the Department of Human Services. Reporting and monitoring 1.During the period of the extended supervision order the defendant must accept the supervision and guidance of the Probation and Parole Service, the CCMG, ADHC and the Child Protection Watch Team for as long as necessary as determined by the Departmental Supervising Officer. 2.[The following text was struck out: The defendant must report personally once a week to the Departmental Supervising Officer and as otherwise directed by that Officer.]

3. The defendant must comply with any reasonable direction given by the Departmental Supervising Officer or any other departmental officer who may from time to time be involved in supervision of the defendant. 4.For at least the first 9 months from the date of this order, the defendant must wear electronic monitoring equipment if and as directed by the Departmental Supervising Officer and must comply with all instructions given by officers of the Department in relation to the operation of such equipment. The defendant must not tamper with or remove such equipment. At the end of 9 months the Departmental Supervising Officer must review this condition and must, following such review, not unreasonably refuse to discontinue the use of the electronic monitoring equipment. 5.Unless and until he is directed otherwise by the Departmental Supervising Officer, the defendant must inform the Departmental Supervising Officer of his proposed daily movements 48 hours in advance and must obtain prior approval from that officer for any proposed change. At the end of two years from the date of this order, the Departmental Supervising Officer must review this condition and must, following such review, not unreasonably refuse to discontinue the requirement to provide a schedule. 6.Condition 5 does not apply if the defendant requires urgent medical attention and he is either unable to inform the Departmental Supervising Officer of his proposed movements in advance or is unable to obtain prior approval from the Departmental Supervising Officer for any proposed change in advance. Accommodation 7.For the duration of the extended supervision order the defendant must reside at such accommodation as is approved in advance by the Departmental Supervising Officer. 8.The defendant must accept home visits at the approved accommodation, including visits without prior notice, by the Departmental Supervising Officer or any other departmental officer. 9.For 9 months from the date of this order, the defendant must be at his address between-the hours of 9 pm and 6 am the following morning, unless his presence at another place during those hours has been approved in advance by the Departmental Supervising Officer. 10.The defendant must not leave New South Wales without the prior written permission of the Commissioner or his delegate. Community Justice Program 11.[The following text was struck out: The defendant must participate in all interviews and other appointments conducted by or on behalf of officers with the CJP in tho course of assessing tho appropriate package of support services to be provided to the defendant as part of the CJP.] 12.[The following text was struck out: The defendant must participate in any interim package of support services offered by the CJP, or by persons engaged by tho CJP, pending finalisation of the assessment referred to in paragraph 11.] 13.The defendant must participate in the services determined by the CJP to be appropriate for the defendant, as a result of the initial assessment or any subsequent assessment, and must not unreasonably withhold his consent to participate in activities which form part of those services. Restrictions on employment and other activities Employment 14.The defendant may only enter into employment arranged or approved by the Departmental Supervising Officer and must not enter into or undertake employment unless it has been so arranged or approved. 15.If deemed necessary by the Departmental Supervising Officer, the defendant must make his employer aware of his offending history. Alcohol 16.The defendant must not possess or consume any alcohol (including any alcohol-based products such as methylated spirits). 17.The defendant must submit to alcohol testing as directed by the Departmental Supervising Officer. 18.The defendant must attend community based alcohol programs as directed by the Departmental Supervising Officer.

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 August 2011